Listed events

§
(1) The Independent Television Commission shall do all that they can to secure that any programme which consists of or includes the whole or any part of a listed event shall be available for live reception by a substantial majority of the total television audience of the United Kingdom and shall not be included on pay-per-view terms in any service provided by the holder of a licence granted by the Commission under Parts I and II of this Act.

§
(2) Any such programme as is mentioned in subsection (1) shall be available for live reception by a substantial majority of the total television audience of the United Kingdom and shall not be included on pay-per-view terms in any service provided by the BBC or the Welsh Authority.

(a) a listed event is a sporting or other event of national interest which is for the time being included in a list drawn up by the Secretary of State for the purposes of this section; and

(b) a programme is included in any service on pay-per-view terms if any payments falling to be made by subscribers to that service will or may vary according to whether that programme is or is not actually received by them.

§
(4) The Secretary of State shall not at any time draw up, revise or cease to maintain such a list as is mentioned in subsection (3) unless he has first consulted—

(a) the BBC;

(b) the Welsh Authority;

(c) the Commission; and

(d) in relation to a relevant event, the person from whom the rights to televise that event may be acquired;

and for the purposes of this subsection a relevant event is a sporting or other event of national interest which the Secretary of State proposes to include in, or omit from, the list.

§
(5) As soon as he has drawn up or revised such a list as is mentioned in subsection (3), the Secretary of State shall publish the list in such manner as he considers appropriate for bringing it to the attention of—

(a) the persons mentioned in subsection (4); and

(b) every person who is the holder of a licence granted by the Commission under Part I of this Act.

§
(6) Neither subsection (1) nor subsection (2) above shall apply in relation to the inclusion in such a service as is mentioned in that subsection of a programme which consists of or includes a recording of the whole or any part of any listed event where the programme is so included more than 48 hours after the original recording was made.

§
(7) In this section "national interest" includes interest within England, Scotland, Wales or Northern Ireland").

§
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No 264 We are dealing now with the rather vexed question of listed events, on which there was a very lively discussion in Committee. At that time the amendment moved by the noble Lord, Lord Thomson, and supported by noble Lords on these Benches was lost by only eight votes It secured a great deal of support from all around the Chamber which was expressed in many of the speeches made on that occasion.

§
Ever since ITV began in 1955 the principle has been enshrined in law that no broadcaster should have exclusive rights in broadcasting sporting or other events of a special national interest. Those are known
729
as listed events. This principle was laid down in the Broadcasting Act 1981 and in the Cable and Broadcasting Act 1984. One wonders at this stage why the Government should think it necessary to repeal such a provision What indeed will be the effect of repealing it? Potentially, under the terms of the Bill as it now stands, any satellite channel could acquire exclusive rights This would have the unfortunate effect of disenfranchising the poor, many old age pensioners and others who could not afford satellite dishes.

§
Even if one can afford the equipment, satellite television cannot yet be received in 20 to 25 per cent of homes in the United Kingdom due to the technical problem of direct line of sight. If the Bill remains in its present form the national interest in this area—I stress that this is a matter of the national interest; it is not just a question of sport or individual games—will no longer be protected The question we ask is whether the national interest would be better served by market forces That is the effect of the Government's proposal in the Bill before us. Those with dishes or cable equipment amount to only 6 per cent. of the total television audience Those who receive only terrestrial television—the great majority—would be unable to receive these programmes. That would be grossly unfair.

§
We accept that amendments may be necessary to take account, as times goes on, of the increase in the number of channels. That is why the amendment before the House today is rather different from the one before us in Committee. It is more flexible than the one that was moved and voted on on that occasion. We accept that with the large increase in the number of channels different arrangements may have to be made There should be a certain amount of flexibility. Therefore we are not seeking to replicate the provisions of the 1981 Act which prevent exclusive ownership of any of the listed events. It is not the ownership of the broadcasting rights with which we are concerned What is most important in this context is the right of anyone with a television set to have access to listed events.

§
If in future a satellite service is available for reception by a substantial majority of the audience, the satellite channel need not be prevented from exclusive ownership as it should be at the moment At present they do not have the capacity to reach a substantial majority Therefore, in the interim period, when the great majority of people would continue to receive their television programmes via the BBC or the commercial companies, it means that there would have to be co-operation between the broadcasters in order to maintain the current system. Our only concern is the public interest.

§
The ITC should ensure that the majority of viewers have access to live coverage of listed events, whatever may be the means of delivery. I stress the word "live" Perhaps your Lordships can imagine what would have happened if, for example, in the case of the World Cup the terrestrial viewers had been told that they would
730
have to wait until the next day or until some other time to receive the results of the matches. In my view there would have been a revolution in this country.

§
It is essential that the viewing public should be the first priority I believe that that is the first priority of Parliament when it frames these rules A Gallup poll which was carried out in August found that 77 per cent of the public would be very positively concerned if at least one of the 10 listed sporting events were only available via satellite or cable. The results indicated that 90 per cent. of those surveyed had watched at least one listed event, and of those 83 per cent were positively concerned about the potential restriction on viewing these events.

§
Cable and satellite channels have already entered into agreements with terrestrial broadcasters to share coverage of listed events. The most notable example is the co-operation between the BBC and BSB in respect of Wimbledon and with Sky in relation to the West Indies cricket coverage. That form of co-operation should be encouraged. There is no reason why it should not continue and expand. The amendment proposed would initiate a system of listed events which would achieve that aim.

§
The main point is that if our amendment was carried today—I hope that it will be—the Secretary of State would no longer be able to make regulations to prevent the exclusive ownership or broadcasting of listed events. The only proviso would be that listed events would have to be available to,
a substantial majority of the total television audience",
including satellite, cable and terrestrial television services. It would have the virtue of providing the necessary protection for 90 per cent. of the viewing audience; it would open up the market for the broadcasting rights for listed events to cable and satellite operators; and it would introduce greater competition thereby increasing the revenue to sporting bodies which could be ploughed back into sport. As I understand it, the BBC is prepared to make efforts to compromise in the matter, even if it means losing some of its sporting programmes to ITV, so that the basic argument—which I hope is the one that I have been expounding—is accepted.

§
We have heard a great deal about the fact that there should be choice in respect of these services—quite fairly, as this is the Government's policy During the course of debates on the Bill we have heard that it is thought that viewers should have much more choice than they have had in the past. Indeed we now have more channels and different systems of broadcasting. However, it does not seem to me that that aim can be fulfilled because if the provision remains as it stands in the clause many potential viewers would literally be prevented from seeing the programmes in which they are especially interested.

§
In this country there is a great interest in sport; indeed, great passion is expressed in this respect. People who may not be interested in tennis may nevertheless want to watch football. It is one of our national characteristics. Therefore the whole issue goes rather further than the question of broadcasting,
731
techniques, rights and so on; it is something which is very much attached to our national life and characteristics.

§
I believe that the concept that I am proposing on behalf of these Benches, which has the support of the Liberal Democrat Benches, is reasonable, fair and ought in my view to be accepted by the Government. I beg to move.

My Lords, I rise to express my support for the amendment moved by the noble Baroness, Lady Birk. However, before I do so, I cannot help but remember that when we discussed an analogous amendment in Committee it was in fact the last occasion upon which Lord Swann intervened in this House He supported the amendment. I should just like to say, and I am sure that your Lordships will agree with me, that, as a result of his sad and untimely death, we shall miss his presence not only in these proceedings but also in future debates on other legislation.

The effect of the Bill has been to shift radically the focus of British broadcasting. It has shifted it from a system of broadcasting which was dedicated to the service of the public interest to one which is dedicated to delivering audiences to advertisers. The object of all the amendments which have been moved from this side of the House has been to claw back some of those changes which we feel are detrimental to the public interest. In my view this amendment is an extremely good example of the way in which we have approached the provisions of tie Bill.

The noble Earl, Lord Ferrers, very wisely explained to the House the implications and the meaning of Section 14 of the Cable and Broadcasting Act 1984 when we discussed the matter in Committee He pointed out to us that it did not provide the guarantee of exclusive right to the BBC or ITV to broadcast these listed events I think that most people believed that those two bodies did have some such guarantee and therefore his explanation was salutary. I can only say that I think most people would like them to have a guarantee, if they do not already have one. That is one of the things which this amendment would provide.

Most people believe when they pay the licence fee that they have, in the words of Paul Fox, "bought a ticket to these great occasions" and that that is part and parcel of the bargain. I do not think that the public should have to buy a Sky dish or a BSB squarial in order to see these listed events They are a matter of general interest and of some public importance.

The noble Baroness explained very clearly the nature of the compromise which the BBC has proposed which preserves the right of any broadcaster who can reach a substantial majority of the nation to bid for these events and which also makes allowance for sub-contracting for highlights and so on. That seems to me, and to those on this side of the House, to be an extremely reasonable proposal.

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In supporting the amendment, one cannot neglect the point made by the right reverend Prelate the Bishop of Liverpool on the last occasion we discussed the matter. He pointed out that this is not merely a broadcasting matter but something that affects the fabric of the country Seeing those great events is a shared experience for people. That is a matter of considerable importance.

Broadcasting is one of the things which unites, or can unite, a nation by providing the opportunity to share a great experience. The listed events are an example of that concept. If we abandon them and merely put them up for auction, and if they are used as loss leaders so that only a minority of the people see them, we shall be not merely depriving people of something they greatly enjoy; we shall be depriving the nation of an experience which it enjoys and which brings it together. I support the amendment.

My Lords, before the noble Lord sits down, many of us would like to see the listed events retained, but surely the danger is that the Home Secretary will come under pressure to enlarge the list. It was six; it is now 10. There will be a world heavyweight boxing championship somewhere, and then I can see the list expanding. Should we not think about that point? There are extra terrestrial channels —Channel 5 is one, and possibly in the future further inventions will double the number of terrestrial channels—so it would not be right to expand both those bases and thus deprive the new channels of the opportunity to expand their audiences.

My Lords, I see no reason why we should not think about that issue. I see no reason why any Home Secretary should be so foolish as to expand listed events indefinitely. I would trust his judgment not to do so.

Earl Ferrers

My Lords, on a technical point, the noble Baroness, Lady Birk, said that she was speaking to Amendment No 264 I believe she meant Amendment No 366A I see that the noble Baroness signifies assent I join the noble Lord, Lord Bonham-Carter, in his observations about the late Lord Swann He was a knowledgeable expert on broadcasting matters He contributed considerably to the earlier stages of the Bill. We shall miss his interventions not only on the Bill but on future broadcasting occasions.

The amendments deal with an important and contentious issue which has been debated at all stages of the Bill's passage through Parliament We heard again the views on the subject held strongly by the noble Baroness and the noble Lord, Lord Bonham-Carter It is important that I should briefly rehearse the position of the existing law and explain how the proposals contained in the Bill relate to it. That should demonstrate to your Lordships that the protection in existing law is often exaggerated, and make clear that substantial safeguards still remain.

Section 14 of the Cable and Broadcasting Act 1984 provides two safeguards. First, it provides that listed events may not be shown on cable television and on a pay-per-view basis. That is where viewers are charged
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an additional sum for watching a special event Secondly, it provides that where a channel which is carried on cable systems proposes to show a listed event the BBC and ITV have to be offered the right to acquire the rights on comparable terms. If they accept, they can have them If not, the other applicants can broadcast them. This means in effect that a satellite or cable channel such as Sky or BSB could show listed events on an exclusive basis now and only if the BBC and ITV had not taken up the opportunity to match their bid.

Many people believe that the BBC and ITV have at the moment an absolute right to show sporting events That is not so. The noble Baroness said that that right was enshrined in the law, and asked why we sought to change it. The BBC and ITV have less protection than is often imagined.

The Bill retains and extends the prohibition of showing listed events on pay-per-view terms. That restriction will now apply to all channels and not just those carried on cable. That, I suggest, is a most significant and additional safeguard. Only a small proportion of homes can receive satellite and cable television and that is likely to remain the case for some time That means that the only way such channels could afford to show listed events profitably would be to make an individual charge for doing so The Bill will stop them from doing so However, the Bill removes the matching-bid safeguard That is merely because in an increasingly competitive broadcasting industry we consider that the ITC would find it increasingly difficult and almost impossible to enforce. Indeed, I doubt whether that safeguard would ever have been practically implemented. Our proposals merely simplify and update the safeguards in the 1984 Act.

The effect of the amendments would be that a listed event could be shown live on a universally available channel only and not on pay-per-view terms. In effect, that would limit the possibility of organisers selling live rights to the BBC, Channel 3 and Channel 4. That would be a significant extension of the limited restrictions imposed by existing legislation and should be viewed as such. On a technical point, the new clause is defective.

As I sought to explain in Committee, there is an important point of principle here. Only if there are compelling reasons to do so should Parliament constrain the rights of people to do as they wish with their property. Sporting rights are a form of property, and the sale of those rights is one of the principal means by which sporting bodies generate their income. The amendments would severely limit the opportunity for sporting bodies to raise revenue, which could have great implications for the future of sport.

The noble Lord, Lord Bonham-Carter, said, understandably, that those programmes should not be used as loss leaders and we should not deprive people of what they enjoy seeing. However, he omitted to say that those rights are the property of others by which they can make more money for the betterment of their
734
sport. It has been said from time to time that those events will soon be available on satellite television only. I wonder whether that is realistic As I have explained, the Government intend to maintain, and indeed extend, the scope of the pay-per-view restriction. That would mean that listed events could be shown only on satellite or cable television at a substantial loss. I doubt that the channel would recoup that loss through increased dish sales.

Contrary to what the noble Lord, Lord Airedale, said in Committee, I suggest that few people would purchase a satellite dish merely to watch a 90-minute football match or a horse race lasting little more than 10 minutes Furthermore, I believe it unlikely that a satellite service would overbid the terrestrial services to encourage people to purchase dishes for those limited occasions.

Of greater significance is the fact that money is not the only relevant factor involved. The All England Lawn Tennis Club has said that audience reach and levels of coverage are also important. Indeed that club demonstrated its commitment to that view only recently by concluding a deal with the BBC to cover Wimbledon for yet another four years. At the same time competition from other broadcasters has meant that the BBC is paying substantially more for those rights. I suggest that that is to the long-term benefit of English tennis. Other sporting bodies have also made clear that the level of coverage is of major importance and I suggest that for many years to come it is unlikely that the list of events will be available only on satellite television.

Joint arrangements, such as those which the BBC and BSB have agreed with the Football Association for coverage of the FA Cup and with the Test and County Cricket Board for cricket coverage, whereby BSB provides a complementary service to that provided by the BBC, are the pattern for the future.

Understandable though it is that the noble Baroness and the noble Lord, Lord Bonham-Carter, wish to see those events relayed only on terrestrial television, I do not believe that they have made out their case If their amendments are accepted, there would be a strictly limiting effect on the sale of the property rights of those organisers. I do not believe that that would be to the long-term benefit of sport or indeed of viewers.

My Lords, I thank the Minister for that explanation It goes without saying that if there is a technical error in the amendment I should be grateful to have that put right if the amendment is accepted.

With great respect, I do not believe that the Minister is right on the question of protection. Protection is accorded under the 1981 Act because that prevents the exclusive ownership of broadcasting rights as regards listed events It is not the power from the 1984 Act which is being removed We are trying to encourage the broadcaster to co-operate in the presentation of listed events. Importantly, it is the viewer and not the terrestrial broadcaster who is
735
favoured. We are anxious that the viewers should have the best deal. I am not very concerned about property rights. Those matters seem to arise on discussion of every Bill.

The amendment provides a compromise between broadcasters and the sporting bodies. At present I do not believe that sporting bodies are keen to sell their rights because, due to the comparatively small number of satellite owners in this country, they will not be paid as much as they would like We are dealing with this interim period. In the last debate the noble Lord, Lord Thomson, said that he was quite certain that that period would last at least until the end of the century, and I am sure he is right. Viewers should be quite safe in the knowledge that they will be able to see all these listed events on their terrestrial television sets without being pressed into buying dishes or squarials or installing cable, which may be a matter of choice or finance.

The Minister quite rightly referred to arrangements being made between the BBC and Wimbledon. At the same time, it works the other way The BBC was not able to provide live coverage of the Benson & Hedges Cup Final this year for the first time since the competition began because of a deal between the TCCB and BSB. The matter is not as clear-cut as the noble Earl would have us believe. In this interim period it is much better and safer for the country as a whole if we stick to what we are used to and do not start making changes while broadcasting is developing new techniques. Therefore I must test the feeling of the House.

However, before I do so, I should like to add my voice to that of the noble Lord, Lord Bonham-Carter. The noble Lord, Lord Orr-Ewing, asked about pressing the Home Secretary to add to the list. Home Secretaries and other Secretaries of State, if they are worth their salt, can withstand pressure about arty number of issues. Therefore I do not believe that these lists will be greatly enlarged unless there is a very good reason. That could happen at any time, but I agree with the noble Lord, Lord Bonham-Carter, that it is highly unlikely. I commend the amendment to the House.

§
—() The Secretary of State shall, for the financial year beginning with 1st April 1991, establish an endowment fund for the benefit of the Authority for such amount as he, with the approval of the Treasury, shall determine to be appropriate for the purposes of this section.

§
(2) Any amount received by the Authority under subsection (1) shall be credited by them to a fund established by them under this section to be known as the Radio Fund.

§
(3) The Fund shall be under the management of a committee appointed by the Authority for the purpose of this section, to be known as the Radio Fund Committee and shall be applied by the Committee in the making of grants for the following purposes, namely to support and encourage—

(a) training for the benefit of independent radio;

(b) the making of arts programmes ethnic minority interest programmes programmes to support voluntary action, programmes with an educational purpose, creative and innovative programmes.

(c) the establishment of new transmission facilities in remote rural or other difficult areas;

(d) research and development work for the benefit of independent radio.

§
(4) When making any grant out of the Fund in pursuance of subsection (3) the Committee may impose such conditions as they think fit.

§
(5) The Authority shall so exercise their power under subsection (3) to appoint members of the Committee as to secure that a majority of the members are persons who appear to them to possess a knowledge of the purposes to which, under subsection (3) above the Committee may apply the Fund.

§
(6) Any sums required by the Secretary of State under subsection (1) shall be paid by money provided by Parliament.

§
(7) In this section "the Authority" means the Radio Authority; "the Committee" means the body established under subsection (3) above").

§
The noble Earl said: My Lords in moving Amendment No. 210 I wish to speak also to Amendment No. 219 standing in the names of the noble Lord Lord Thomson of Monifieth and the noble Baroness Lady Birk. I also wish to pay tribute to my noble friend Lord Colwyn who moved an amendment on this point in Committee and whose efforts on behalf of independent radio are well known. In reply to my noble friend the Minister left the matter open. It appeared that he might yet be convinced of this case. Therefore I have decided to put before him a version of the amendment which I believe takes account of the reservations he expressed in Committee. I hope therefore he will look more favourably on this case now.

§
The Bill rightly ends the system of cross-subsidy for independent radio stations by which the cost of renting transmitters from the IBA was levied differently on smaller and larger stations according to their means. In 1988 the IBA effectively discontinued the second rental levied on profits. It was right that this rigging of the market should end but the time has come to acknowledge that the consequence has been much less cash in the system.

§
The smaller stations, on whose expansion in the next decade the Government's vision for independent radio so strongly depends, have lost, in 1989 prices, about £1.75 million. Much of this was in the form of support for the kind of diverse and imaginative programming that the Government, and indeed all of us want to hear, including projects such as the highly successful "Canterbury Tales". Support has also been lost for training, networking and, dare I say it, parliamentary broadcasting. To cope with this reduction in resources, the smaller stations have had to retrench. Recent research has shown that local news and speech based programmes, such as drama and programmes on voluntary action, have been drastically cut.

§
The chief executive designate of the Radio Authority has admitted that the financial climate prevents the IBA from insisting on the kinds of diverse programming that it would normally want to see Most of the new incremental stations are now in financial difficulties because advertising revenue has not come their way. Trained staff are being made redundant and training has been abandoned. Some stations are now facing closure and new stations are not coming on to the market because profit margins are so low and the start-up costs are so great.

§
In Rutland the IBA was unable to find any takers for its proffered franchise. The loss of supply capacity means that it is hard to believe that independent radio can fulfil our hopes for it without an extra push. Against that my noble friend on the Front Bench cited the 860 or so letters of intent received from those interested in running new stations. However, a letter of intent is just that; it commits no one. A
739
proportionate number of letters was received during the incremental exercise, but that has not prevented most of those concerned from getting into trouble.

§
My noble friend the Minister said in Committee that local authorities and other public bodies would have powers to make some funds available. However, in practice few will have the resources or the will to do so Moreover as the right reverend Prelate the Bishop of Liverpool astutely noted in Committee, local authority funding carries with it the dangers of political strings of which the independent radio world is rightly chary. Training and networking are industry-wide needs and local authorities have no powers to fund them.

§
My proposal is a modest one and it now has wide support in the world of independent radio. I envisage that a radio fund established on the lines of my amendment would provide specific project support for training creative programming, start-up costs in rural areas and research and development In Committee my noble friend the Minister said that established independent local radio stations might reasonably resent the Government providing funds to subsidise new competition. I agree with my noble friend on that point. However, in the amendment that I am moving the clause targeting benefit to new radio enterprises has been dropped. Instead I am simply advocating project based funding to which all independent radio enterprises, whether new or not will have equal access.

§
Lest it be misunderstood let me say immediately that I do not envisage its use for long-term subsidy, and still less for cross-subsidy by the back door. To take account of the doubts of my noble friend as expressed in Committee, my amendment makes clear that all independent radio stations may apply for this assistance. The purposes of the fund have been carefully drafted to exclude any possibility that the fund might turn itself into a long-term revenue subsidy.

§
It is proposed that the fund be established with a one-off endowment of £10 million of public money. I am confident that it could attract additional private sponsorship or finance once the initial magnet is in place Grants would be subject to conditions, which might include raising some external finance in addition.

§
The Government have accepted the case that they should provide funds to stimulate the market in Gaelic television, and there they are offering a year-on-year contribution of £8 million. The Treasury will be in receipt of revenues from the auction of franchises for national radio and tax revenues from independent radio generally. Set against those resources, the radio fund is surely a modest but prudent investment to secure much greater tax revenue for the public purse while stimulating the market and greater private investment. The Radio Authority has said that it would be willing to administer such a fund were it to be established.

§
The Government have done this on a number of occasions when they have deregulated the market. The
740
Gaelic Broadcasting Fund is but one example. Again, when the Government sought to stimulate the privately rented housing market they used a mix of tax reliefs through the business expansion scheme for landlords and a restructuring of funding to housing associations to get that market moving. I hope that my noble friend will accept that my amendment is entirely in line with the Government's approach.

§
If independent radio is to flourish it must attract audiences for then it will attract advertising revenues which will finance further expansion. To attract audiences, as the Home Office's own research has shown, speech based programmes are needed, because that is what many potential listeners want. Drama, news, current affairs, programmes linked to local voluntary activities and the like all make heavier demands on investment and training than music programming. It is that area that is most under threat and yet most crucial to the innovation, choice and diversity which the Government have set as the objectives of their reform. The danger is of a vicious circle of declining creative programming, declining audiences, declining revenues and declining investment. My proposal is to promote a virtuous circle by stimulating the market in the most carefully targeted way. I beg to move.

My Lords, I take it that the amendment is to be taken with Amendment No. 219. I should like to speak to the amendment moved by the noble Earl, Lord Stockton, and to Amendment No. 219 which stands in the name of my noble friend Lord Thomson of Monifieth.

I support wholeheartedly the principle behind the amendment of the noble Earl, Lord Stockton. Ours has the same objectives but it is rather simpler than the noble Earl's amendment. In the light of the fact that the noble Earl, Lord Ferrers, said in reply to the noble Lord, Lord Colwyn, in Committee that he could not justify such a fund coming from taxation, I point out that our proposal does not involve new money. It merely allows the Radio Authority to use its revenues if a service worthy of being established or maintained would otherwise fail.

We have two types of service in mind. One is the specialist ethnic station, such as those which have recently been established in London and elsewhere. The London Greek Radio and Sunset in Manchester are typical examples. They serve particular communities but are not community services as they have a commercial element built into them and are subject to the requirements of the IBA relating to equipment, training and so on.

We propose that the Radio Authority should use some of its revenues as a prop for those stations, which in their early days often encounter severe difficulties in building an audience and attracting advertising. The authority could provide interest-free loans, help with training and perhaps a subsidy over a strictly limited period of time to assist a station which is providing a new and specific service and which has not as yet attained commercial viability.

741
An example of a different type of station which would also be open to such help is the proposed Radio Parkland in Perthshire. A service is proposed because of the poor reception due to the terrain in that part of the world and the cost of improving services is too costly for a commercial venture as the population is a mere 12,500. The station is committed to being locally owned and to drawing its programming from local sources to reflect the diversity of the local population. To use its own words:
In many ways it will be like a campus or hospital radio made by and for a special group of people, the people of Highland Perthshire
The kind of service which that station intends to provide, and for which it is raising funds, could be of benefit throughout rural areas whether in Scotland, parts of Wales the South West or places such as Northumberland or Cumbria. Stations of that kind cannot expect to be commercially viable initially. They perform an extremely important social service. They require support and Amendment No. 219 offers a means whereby that support could be provided.

My Lords, I have the greatest sympathy with the new clause proposed by the noble Earl, Lord Stockton It is obvious that there will be good services in need of support. I am thinking particularly of national services. I have never seen how it is possible for a speech based national programme to make a living. I have never seen how it is possible for a non-pop music station to be sure in its opening years of being able to exist.

The noble Earl's proposition was shot down heavily by the noble Earl, Lord Ferrers, in Committee. I dare not hope that it can succeed. However, the much more modest proposal that the authority may use its own revenues,
for the purpose of establishing or maintaining services pursuant for the purpose of subsections 2 and 3
makes a good deal of common sense. The amendment does not propose the establishment of a fund specifically for non-commercial services but requires the authority to assist those services by providing funds as and when necessary to initiate or maintain them. Without some form of public funding, high quality and diverse national and local community radio services cannot be sustained.

While there may be many people interested in operating new radio services there simply is not sufficient revenue to go round. That is no truer than at this moment with the dearth of advertising revenue. One hopes that in a few years' time advertising revenue will have swollen to the agreeable proportions that it had a year or two ago. I speak as an ex-newspaper man. However, for the time being things are very tight and some form of help from the authority would be very useful.

My Lords, the amendment moved by my noble friend Lord Stockton proposes a new head of public expenditure. I believe that your Lordships will feel that for that reason it requires very careful examination. As your Lordships will be aware, when dealing with a proposal for public expenditure
742
one is not so much concerned with whether its intentions are good or well meaning—I am sure that in this case they are—but, given the fact that there is a limit to the amount of public spending which is economically possible, with whether the proposal is entitled to priority over all the other claimants for public spending.

Particularly at this moment, when I understand that the Star Chamber is likely to go into action fairly soon on various proposals and when, apart from that, public expenditure is a very real problem, noble Lords have to be cautious before advocating a new head of public expenditure. No one can sincerely advocate further public spending unless he is prepared to give that public spending priority over the many other claims which are made.

With great respect to my noble friend I ask whether it is possible to suggest that, against so many claims under the heads of education social security, war widows and the rest, one can justify spending public money for the purposes which he so eloquently outlined. Because of my old Treasury background I may perhaps be inclined to look at matters a little in that way but I suggest that it is a way that a responsible House of Parliament must look at proposals for public spending.

In the circumstances, although my noble friend's intentions are admirable and I am sure that if put into operation this proposal would do a certain amount of good, I do not feel that it is entitled to priority over the many other urgent claims that we have. Therefore I hope that your Lordships will reject it.

My Lords at this stage in the Bill we are bound to consider what the Government might conceivably accept rather than what we might like best. From that point of view alone I feel that we must come down in favour of Amendment No. 219, rather than Amendment No 210 for the reasons put forward by the noble Lord. It is not that I believe the noble Earl's reasons to be valid but I fear that they are the kind of reasons that may impress the Front Bench. Although from many points of view the more comprehensive approach of the noble Earl has much to commend it and although I personally always hesitate to mix public and private money under a single control because of the problems which can arise under those circumstances, I should have gone along with the proposal if I felt that it had a chance.

When the matter was considered earlier the noble Earl did not rule out the proposal. He said that he might be impressed with it at some future date. Let us hope that that future date has arrived and that this afternoon he will find it possible—not to accept the more comprehensive amendment proposed, although he might look at it at a later stage—to accept this proposal as a paving operation if nothing else. After all, it amounts to no more than the authority being given as it were, the ability to use part of its funds in a creative fashion.

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The effect of this amendment would be to subsidise or support the efforts of the BBC. In terms of radio most people who have attempted to listen in other parts of the world where they can understand it, would agree that the BBC is almost unapproachable. There are other countries which achieve excellence. I am no authority on the matter but I am reliably informed that some of the German radio programmes are extremely good. However, the popularity of for example the World Service demonstrates that we have an asset in the hands of the BBC.

I am sure that many noble Lords will be disappointed at the failure of ITV in terms of creative policy to come anywhere at all near the BBC. Certainly it serves a useful purpose but there is no comparison. It seems to me that this would be an opportunity for independent radio to move a little in the direction of asking, "Can't we compare creatively with the BBC rather than being merely an alternative news organisation?" Certainly it is very useful and the sporting programmes are useful. But it is high time that action is taken and this is the opportunity.

For example, the BBC drama radio programmes fulfil an enormously useful role in terms of social purpose and enjoyment. There are quite a large number of fans of drama writing. I must here declare an interest. I am not a professional writer, as is my noble friend Lord Willis. However, I have recently acquired an interest in writing radio plays. Although my plays are by no means the most popular, an audience of around one million is not unusual. In theatrical terms, it is quite a large number of people. They ought not to be neglected.

Why should not independent radio also try to compete on that level? I do not believe that it can be done without some encouragement. We have an opportunity here for the noble Earl to accept that encouragement on their behalf. I hope that he will do SO.

My Lords I must declare, as I always do, my interest as chairman designate of the Radio Authority. Perhaps I may remind the House that, when we speak of the revenues of the Radio Authority, the sole source of revenue of the Radio Authority will be the programme companies themselves. Therefore were the Radio Authority to use some of those revenues to prop up unsuccessful stations (which seems to be the thrust of this amendment) it could only be at the expense of the programme companies, and logically the successful programme companies.

Therefore I think it important that noble Lords should recognise that this amendment implies that unsuccessful or struggling stations will have to be put right at the expense of the successful ones. I make no comment on the propriety or otherwise of that. I simply point out that it is the inevitable consequence of this amendment.

Earl Ferrers

My Lords, I am grateful to my noble friend for his helpful explanation of the way in which this amendment is intended to work and in particular for clarifying the changes which have been made to it
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since we last considered the matter in Committee. I am bound to say that I can understand the attraction of the idea of a fund of that sort. However, noble Lords will realise that there are many skilful and sincere people who are very good at devising worthwhile new initiatives which will work beautifully provided that they can be funded by the taxpayer.

The noble Lord, Lord Chalfont, immediately rose up like a cobra because he thought that the Radio Authority would have to provide the money. I rise up like a cobra because under the amendment it will be the Government who have to provide the money.

It is perfectly true that under Amendment No. 219 the money might come from the Radio Authority. But from whichever way it comes it will have to come from somebody. My noble friend Lord Stockton mentioned the mystic sum of £10 million as if it were a small amount. I believe that my noble friend Lord Boyd-Carpenter was entirely right when he said that any funds that come from government have to come in competition with other departments which may possibly have a greater call on public funds.

It may be a slightly unpopular remark but we should soon be in fairly deep trouble if in those sorts of cases we did not ask ourselves whether what is proposed is worthwhile, and not only that but whether it is absolutely necessary. Our position is this We suggested in the Green Paper in 1987 that radio stations in future should stand on their own feet. That suggestion was widely accepted.

We have made every effort in this Bill to lighten the burden on independent radio services so that they will have every chance to achieve self-sufficiency. New stations will be able to open for business without incurring the kind of heavy outlay which was a feature of the operation of the 1981 Act. Transitional arrangements have been made to assist the present incumbents as they move into the new form of environment. In future stations will have much greater freedom than before in their operational programming and transmission arrangements. That means that they will be able to exercise considerably more control over their expenditure so as to keep within their available resources.

My noble friend Lord Stockton said that the shadow Radio Authority has had expressions of interest from 900 groups or individuals wishing to run radio stations. That suggests that even if the 900 groups do not materialise, nevertheless there is no lack of optimism or shortage of people who believe that they can successfully operate such a business without being subsidised.

The other important point is this. The amendment provides that the Radio Authority has to appoint a body of people who would work at the taxpayers' expense to set up radio stations in places where the demand would not otherwise support a service. Those stations would operate without fear of competition since they would be securely funded by public money. I am not sure that that would be consistent with the authority's duty to try to ensure fair and effective competition.

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I am not persuaded that other radio stations would view the prospect of subsidised competition with equanimity. It is perfectly true that existing stations would be eligible for money from the fund. However, another purpose of the fund is to get new stations started. Despite what my noble friend said, such a position would be subsidised competition.

Noble Lords will recall that under Schedule 2 radio stations will be permitted to accept contributions from local authorities and public bodies within guidelines that the Radio Authority is drawing up to safeguard against political influence. The probability is that these guidelines would allow funding for many of the initiatives listed in subsection (3) of the amendment, if the stations concerned can persuade public bodies such as health authorities that they would be worth while and give value for money. The Government announced in December 1988 that we proposed that public authorities should be permitted to give reasonable support to local radio stations for training purposes, to promote the arts and for projects intended to provide a specific benefit to the community. Radio stations will therefore have this option available. Central funding would duplicate these possibilities, which I believe would be better dealt with locally. But the Government do not consider that new stations should be reliant on any form of public funding, whether central or devolved, for their very existence.

My noble friend said that it may be difficult for radio stations to start up. There are areas at present which are not served by independent radio. It may be that they will continue in that state. However, it must be remembered that under the new regime it will be possible for new stations to start up much more cheaply and readily than at present. Frequency availability is usually a lesser problem in rural or remote areas than it is in a big city.

With regard to the amendment in the name of the noble Lord, Lord Thomson of Monifieth, the noble Lord, Lord Bonham-Carter, argued that it would have the same results but without calling upon the taxpayer. Nevertheless, it would unfortunately mean a form of cross-subsidy. That system would reappear since the authority's only source of income is the licence fees.

I hope noble Lords will understand that my reluctance to accept either of these amendments does not mean that I necessarily disagree with the broader aims behind them. But I am not persuaded that it would be a proper use of taxpayers' money or would justify the reintroduction of a cross-subsidy system. I do not believe that such an arrangement needs to be, or indeed should appear, on the face of the Bill. I know that the broadcasting consortium is working hard to set up a committee on a non-statutory basis to operate in line with the Radio Authority's guidelines on public funding. I wish the venture every success.

The Earl of Stockton

My Lords, having listened to the reply of the Minister, the arguments advanced by the noble Lords, Lord Bonham-Carter and Lord Ardwick, and the rebuke by my noble friend Lord
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Boyd-Carpenter, I accept that Amendment No. 219 offers a simpler and perhaps more acceptable solution to the problem. I beg leave to withdraw the amendment.

§
The noble Lord said: My Lords, I speak also to Amendments Nos. 217 and 258. The amendments provide the Government with their last opportunity to achieve something radical in the provision of radio. The amendments are primarily concerned with community radio. Although the Government have frequently spoken in favour of community radio and the benefits it brings to the community which it addresses, they have never willed the means by which community radio can get off the ground or survive in the rather harsh climate in which we live.

§
However, behind the problem lies another one which we discussed at Committee. I do not apologise for raising it once more today. If one has community radio one must distinguish it from local radio. One must define it in such a way that its modus vivendi its way of operating is recognised and understood. We believe that a definition for community radio needs to be written into the Bill. The definition that we would write into the Bill comes from a speech given by the chairman of the shadow Radio Authority, the noble Lord, Lord Chalfont. He defined community radio as,
non-profit distributing services which broadcast minority appeal socially purposive, open access programmes".
The Radio Authority does not believe that there is any future for community radio in this country without it having specific powers to promote and to fund it. In its view commercial considerations will always win in competition.

§
If the Radio Authority is anxious for a definition of community radio to be written into the Bill in order for it to do its job it is difficult to understand the Government's objections. That is precisely what we propose in the amendment. Moreover, an increase in community radio would increase consumer choice. That is one of the purposes behind the Broadcasting Bill.

§
Amendments Nos. 214 and 258 distinguish between a local commercial and community service. They ensure that the authority can designate such a service not just for the locality but for a community also. It gives authority and strength to the wish to take community radio seriously.

§
The Government can see the potential benefits and dangers from other countries. We discussed that issue in Committee. The experience of other countries shows abundantly that where community radio has been Protected, as in Australia and the United States, it thrives. Where it has to exist in a wholly unregulated market, such as in France and Italy, it is simply smothered. The need for a separate designation and definition is now widely accepted. I hope that the Government will be able to accept that.

§
The chairman designate of the Radio Authority has strongly backed separate measures. He said:
I do have one remaining concern; it concerns community radio. I would really like the Government's intentions about community radio to be made much more clear than they are at the moment on the face of the Bill".
All we are asking is for that which the chairman designate of the Radio Authority has asked.

§
I understand that the Government are not opposed in principle to treating community radio differently. However, they do not appear to be convinced of the need. In February the Minister said:
If I felt any of the Bill's provisions would prejudice the proper development of community radio I would not hesitate to change it as I am an advocate of community radio".
We are trying to persuade the Government of a simple proposition: that a definition of community radio should be written on to the face of the Bill. We argue that on the basis of experience abroad, the advice of the chairman designate of the Radio Authority and the verbal support of the Government. That is not asking a great deal. I hope that in reply the Minister will show that he has listened to the arguments and has moved his position in the matter. Without separate treatment and some additional resources, community radio will not get off the ground. I beg to move.

My Lords, I agree with all that the noble Lord, Lord Bonham-Carter, said and I give him my complete support. We have returned to our old quest of ensuring that there is radio broadcasting of quality not only at a national level but also at a regional and local level. In these amendments we are concerned in particular with the local level.

It is only too easy to believe that there is a small, tin-pot station which cannot do too much harm to anybody. That is almost true but not entirely. There can be nothing more mushy than poor quality local commercial radio It is the junk food of the mind. For a moment the taste is all right on the palate, but it is harmful because it fails to nourish. We are worried not about the small amount of harm that is done, but the wasted opportunities which may occur at local level.

Above all, we are concerned about the type of local radio which is called community radio. In Amendment No. 217 we attempt to define that as:
non-profit distributing services which broadcast minority appeal socially purposive open access programmes".748
That sounds very off-putting to audiences and potential subscribers. Nevertheless, community radio can reflect the events and thoughts of an area which regards itself as a community. That community could be a small town or a suburb with its own characteristics. Its community station could inform and encourage local life as may a good local newspaper; or community radio may embrace a community of interests—for example, an ethnic minority living within a certain area. Whichever it is it should be encouraged and financial help should be available.

At the same time we are trying to give the Radio Authority a role requiring high-quality broadcasting balanced over the whole range of services. Today radio broadcasting is overshadowed by television but it remains a useful and influential service. We must not let it be swamped by the cruder type of commercial radio which flourishes in some countries.

My Lords, Amendment No. 217 stands in my name, too. I wish to refer specifically to an area of broadcasting not named in the Bill. That is student radio. There are at present 22 student radio stations operating in universities and polytechnics around the country. They broadcast using an induction-looped system at low power covering small areas of a campus such as a hall of residence and various blocks. Most of the broadcasting is on the medium wave AM system although some stations have experimented with FM through special licences. The stations play music and also have various news and discussion programmes. For their income most rely on a mixture of advertising revenues and grants from student unions.

The anxieties that I wish to raise are those shared by the National Union of Students and the co-ordinating body for student radio stations, the National Association for Student Broadcasting. The first anxiety is financial The student radio stations pay a single licence fee of about £100 per year. In the first year of operation that is much higher. I understand that from 1st January next student radio stations will, together with other radio operators require not one but three separate licences; one under the Wireless Telegraphy Act 1967; one from the Department of Trade and Industry; and another from the Radio Authority. I ask the Minister to clarify that situation. Will his department endeavour to keep the cost to a minimum especially regarding the small student radio stations often surviving on shoestring budgets?

My second anxiety is more long term. Some student radio stations may be interested in bidding for the new community licences that will become available to cover areas local to the college. I ask for an assurance that if any student radio station is bold enough to make such a bid it will be treated in the same way as any other applicant for such a licence.

I understand that the shadow Radio Authority is considering whether there may be frequencies that could be used for low-powered local services that fall outside the full local licence areas that will be advertised by the Radio Authority. Will the Minister clarify the matter? If such frequencies are identified,
749
will they be made available to student radio stations or must they too bid in the same way as other local licences?

I am grateful for the opportunity to raise the subject of student radio today because there has been little opportunity to do so. Often student radio stations are a training ground for young and enthusiastic broadcasters to take their first steps in the field It is important that the service should continue and where possible, be allowed to expand. I hope that the Minister will give some comfort and reassurance on the matter.

My Lords, the fact that the Bill does not refer explicitly to community radio should not lead people to believe that the services have been overlooked The Green Paper which was published in 1987, envisaged community radio as playing a full part in the expansion of radio services which is now beginning to take place. We suggested then that there is no need to draw artificial distinctions between local and community services. The Government's view has always been that that would be harmful and counterproductive. That is because there is no reason why it should not be perfectly legitimate for people to propose radio services that combine commercial and community elements. In fact, there are existing stations which do exactly that. In our view, there is no need to force them into being either a commercial or a community station and thereby putting them into a straitjacket. In any case, opinions quite legitimately differ on how the two terms would be defined.

It is important to bear in mind that a very strong impetus for community radio is written into the Bill. Clause 104 has the effect that the Radio Authority must take strong account of the extent to which a proposed service would add something new and extend listener choice. In other words, an applicant who wants to compete head-on with an existing pop-based station will be much less likely to win a licence than an applicant to run a community station which would add to listener choice. Noble Lords may have seen government amendments Nos. 260 and 261 to Clause 104. Those were prompted by my noble friend Lord Colwyn, and they would have the effect of further strengthening this boost to community radio contained in the licensing criteria.

The amendments to Clauses 83 and 84 which we are discussing now seek to include community services under the broader heading of local services. This is unnecessary since it is already clear that the community services will be licensable as local services But in Clause 103 the amendment would require the authority to distinguish between community and local services. In our view, either a community service is a local service, as the Bill provides, or it is a separate entity. The combination of these amendments would simply make the Bill self-contradictory. For the reasons which I have outlined, I do not believe it would be beneficial to try to provide separately for community radio services, nor specifically to try to define them. The noble Lord, Lord Bonham-Carter,
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wishes to define the difference between those stations, and in his amendment to Clause 84 he offers his definition of a community service.

The main problem with attempting any such definition is that it tends to place the service in a straitjacket when a degree of flexibility may prove vital if the service is to survive. The aim of re-investing profits in the service or the community which it serves can certainly be realised under the Bill as it stands but I do not see why all community-type stations should be forced to do that. Nor do I accept that such stations should be required to broadcast programmes which would not have wide appeal.

I am bound to say that I was confused over Amendment No. 217 and the language it used. I do not know what a socially purposive programme is, nor what an open access programme is. We all have our ideas of what an open access is, but I am bound to say that even my imagination gets stuck over "socially purposive" Whatever our own views may be I do not think that is quite what you might call statutory language There is nothing to preclude applications which propose any or all of the things we have discussed, but we will handicap the growth of independent radio services if we make them mandatory requirements.

The noble Baroness, Lady David, referred to students and student radio. The Bill certainly does nothing to hinder student radio. Amendment No. 217 is about local radio, and I can assure her that every effort will be made to keep students' radio licence fees as low as can reasonably be justified, but that will be a matter for the Radio Authority. She asked me a number of specific questions about student radio. If she will permit me, I should like to find out about those in detail and write to her about them.

The Government fully support the concept of community radio, which we believe will be given ample opportunity to take its place on the broadcasting scene as a result of this Bill, but I do not consider that these amendments would enhance the position of community radio. I hope that the noble Lord, Lord Bonham-Carter, will see it that way too.

My Lords, I am grateful to the noble Earl for what he has said about these amendments and I am sorry that I failed to persuade him of the importance and significance of defining community radio separately and distinct from local radio. This is not just a bee in my bonnet. I am acting on the experience of community radio not only in this country but in America, Australia, Italy and France. In all cases experience has indicated that special treatment and a special definition of community radio is desirable and, in the view of some people essential if it is to survive.

I am resting not only on the experience of those countries. I am resting also on the advice given to the Government by the shadow chairman designate of the Radio Authority, who says the same thing. It is therefore rather disappointing if I failed to persuade
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the noble Earl that my view is not eccentric. It is his view which is slightly eccentric when he thinks that this is a load of unnecessary verbiage.

As for the definition of community radio which I used and which he found so difficult to understand —that is, the meaning of socially purposive and open access—I suggest that he should discuss the meaning of those words with the shadow chairman of the Radio Authority whose words they are and whose definition of community radio it is.

Earl Ferrers

My Lords, if I may interrupt the noble Lord I shall be delighted to discuss this matter with the noble Lord who is the shadow chairman of the Radio Authority, but what one discusses in conversation does not necessarily make for good statutory language.

My Lords, I am not saying that it should be written into the statute. I am saying that that definition is a good working definition of community radio However, I am sorry if I have failed to persuade the Minister. In the light of having failed in this second attempt to move him, I beg leave to withdraw the amendment.

§Earl Ferrers moved Amendment No 215:
Page 71 line 39 leave out ("within a particular institution, or at") and insert ("for a particular establishment or other defined location or").

§
The noble Earl said: My Lords, this amendment fulfils an undertaking which was given by my right honourable friend Mr. Mellor in another place to look again at the definition of a restricted service. We have also taken account of representations from the shadow Radio Authority on this matter. We have concluded that the definition which the Bill currently offers would not be wide enough to allow the Radio Authority to deal with the full range of applications which might reasonably be considered for restricted service licences. At the same time, the Bill needs to maintain a clear distinction between restricted services and local services since restricted services may be licensed more readily without advertisement or the need for the full extent of regulation which the Bill provides for local services. We believe that this amendment will provide the necessary flexibility without blurring the distinction between local and restricted radio services. I beg to move.

§
The policy in the Bill is that the three new national radio stations should genuinely be different from one another, and that one of the three should be mainly speech based and another should consist wholly or mainly of genuinely non-pop music. This policy was
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introduced into the Bill in response to points raised in Committee in another place, and has been widely welcomed both there and in your Lordship's House.

§
The government amendments simply seek to give more complete effect to that policy by spelling out what counts as pop music for the purposes of deciding which proposals would not be eligible to be considered for the non-pop licence. Curiously enough, the need to spell this out has been highlighted by an argument that a service which is based on the broadcasting of rock music as opposed to pop music would be eligible to apply for the non-pop licence.

§
It has been argued that rock music is not the same thing as pop music. I do not know whether it is or is not. But I do know that it would be an odd result—and not, I am sure what your Lordships intended—if a rock music or similar application were able to win the licence for the non-pop service. Apart from the fact that that would be a perverse outcome, the result would also almost certainly be that two of the new national services were not genuinely different from each other, given that a rock or pop-based service will be well placed to win the third, unrestricted licence.

§
It is important to be clear that we are not in this amendment seeking to victimise either rock music bids or rock music fans. We are not saying that a rock-based proposal will not be eligible for any national radio licence. It would in fact be well placed to bid for the one out of the three licences for which eligibility is unrestricted. All we are saying is that a rock or pop-based application should not try to pretend to be eligible for a licence specifically designated as non-pop.

§
We have consulted the chairman and director of the shadow Radio Authority about the definition of pop music contained in the amendment and have modified it slightly to take account of their comments. I understand that they are content with it.

§
The somewhat intricate style of the amendment was thought appropriate because the parliamentary draftsman thought that my definition of "pop" which was thump, thump, thump, would not be parliamentary or statutorily adequate.

§
It will be clear from what I have said that I cannot recommend acceptance of the amendments in the name of the noble Lord, Lord Cobbold. They would have the effect that an application could be considered for the non-pop licence, even if it concentrated on rock or other pop music, provided that that was not Top Forty music. I do not believe that that is what either most of your Lordships or the other place had in mind for the non-pop service. Such a definition would not be a move in the direction of genuine diversity of national radio services. For those reasons, I cannot advise your Lordships to accept Amendments Nos. 220A and 220B, but I can advise your Lordships to accept the amendments that stand in my name. I beg to move.

My Lords, as the noble Earl wanted to move
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Amendment No. 220, perhaps we should discuss the first amendment of the noble Lord, Lord Cobbold —Amendment No. 220A.

The Viscount of Falkland

My Lords, perhaps I may speak to Amendments Nos. 220A and 220B on behalf of my noble friend Lord Cobbold who is a considerable expert on the subject that we are discussing. My name has been left off Amendment No. 220B as a result of a printing error, but the two amendments go together.

The definition of what is pop music and what is not pop music is difficult. It is probably a very British problem that we have a generic name for a certain type of music, known as pop music, which clearly derived originally from the words "popular" and "music". Pop music means something rather different. The Government have quite rightly put down a definition of pop music. The music industry and music lovers were surprised at the duties that were originally proposed to be laid out in statute for the authority under Clause 84. It was clear that a clarification of the definition of pop music was needed.

The amendments that I put before your Lordships today seek to amend the new definition which has been tabled by the Government and described by the Minister. I am always amused and charmed by the noble Earl's clear explanations but on this occasion he has led us into more confusion. I would not say that there was a machiavellian intention here, but there is some intention to fog the issue.

In his brief notes to me my noble friend Lord Cobbold indicated that the age of 55 was perhaps the upper limit for those who might be interested in rock music. As I am 55 years old and am interested in rock music I wonder whether some transformation will take place over the next 12 months. I do not think that age is of any importance here.

Pop music, as is understood by the music industry in this country and in the United States, now has a clear definition. There is a clear understanding that pop music as such is music which is recorded in single versions mainly for a teenage market and which forms part of what is generally known as the Top of the Pops table It is generally accepted that pop music is a single which is part of a market-based table or chart of 40. That may be even more esoteric to your Lordships, but those are the facts of the matter.

It is well known that in this country there are other forms of music which have been grouped by the Government, or those who are helping draw up the legislation, with those singles in the charts that I have described. That includes rock music to which the noble Earl referred. I believe that his description of rock music was thump, thump. I agree that there is an element of thump, thump—

My Lords, I must interrupt the noble Viscount. He is wrong. I said thump, thump, thump.

The Viscount of Falkland

My Lords, I sympathise with the noble Earl. I live in an area where there can sometimes be even more thumps during the evening
754
which helps to create opposition to that kind of music. There is a thumping element in that kind of music. That is reflected by the words in the government amendment:
characterised by a strong rhythmic element and a reliance on electronic amplification for their performance".
In this country the creative side, particularly of what is generally known as rock music, is a successful industry. It has earned many millions of dollars for this country in terms of exports. Rock music is growing in popularity here and abroad, including outside the English-speaking area. I believe that I can say without contradiction that we in the United Kingdom lead the way in that type of music.

Noble Lords may wonder about the kind of music to which I refer. I shall simply mention two names. In this country there is an artist, who is I believe very popular with the Royal Family, called Phil Collins. He is an extremely successful rock artist and something of a film actor. His albums come within the term "rock". They are extremely successful and popular. In the United States there is a recording artist called Bruce Springsteen, known popularly as The Boss, who is a world-renowned artist in this kind of music. Sales of his records continue to boom.

Rock goes into other areas some of which are perhaps more limited in appeal. However, there is a world of difference between pop music and rock music and indeed many other forms of music which have the same thump, thump element.

Earl Ferrers

Thump, thump, thump, my Lords.

The Viscount of Falkland

My Lords I apologise; a thump, thump, thump element. That includes a great deal of ethnic music such as music of West Indian origin.

The Government's definition of pop music excludes all music except classical music for the purposes of granting the franchise or licence. If that is the intention, why did they not just say, "In terms of consumer choice, we need a classical commercial station"? However, I do not have to remind noble Lords who are, like me, interested in classical music that we have perhaps one of the finest classical music stations in the world—Radio 3—which serves classical music well. It may well be that there is room for a further channel.

It must be said that the kind of music I described, which is so successful and popular, is very poorly exposed on the radio waves in this country. I do not believe that there is another country in the English-speaking world and perhaps not in Europe where rock music and music of the kind I have described has so little performance on the radio waves.

If the amendment were to be incorporated into the Bill and pop music included all those other kinds of music and any bidder for the franchise was not eligible, it would have a devastating effect on one of our major cultural and commercial activities. I urge the noble Earl to consider that and I shall be interested to hear his reaction to my remarks. I hope I have made my meaning clear. In terms of the economic performance, the increase in sales one could
755
expect from radio exposure are considerable. An already successful export from this country could expect to become even more successful.

If it is the intention of the Government to introduce another classical commercial station I should say that there is no record of a classical commercial station ever being viable or successful. That is a fact of life. It does not mean that there should not be such a station, but I ask noble Lords to bear that in mind.

If choice and the wishes of the consumer are to be taken into account, why do the Government not allow the tender to go to the best offer? If the Government accept my definition of the difference between pop music and other kinds of music which are not strictly pop, there would be no harm in extracting what I described as chart music. After all, anybody who listens to commercial radio in their car or at home will find disc jockeys introducing mostly pop singles, which fall into the category I described.

The driving force behind these amendments is the desire to correct the definition which the Government gave. To incorporate a definition so loose and inaccurate which does not represent the reality of what is happening in the world is undesirable and extremely bizarre. It must be strange to young people—although not al I young people like that kind of music—to feel that behind government legislation are people who have what might be described as an old fogey attitude towards popular music and who actually believe that pop music includes all the kinds of music I described —West Indian and all the other kinds including that referred to as "rock".

That is all I wish to say. There is a great gap between the noble Earl and myself, but I hope we may come closer as a result of this exchange.

My Lords as the noble Viscount has already engaged in his very interesting speech I shall allow the debate to continue. What has happened is that the House is debating the group of amendments to which the noble Earl, Lord Ferrers, addressed himself, Amendments Nos. 216, 220, 220A and 220B. I shall put those amendments formally later, but the first vote will be taken on Amendment No. 216.

My Lords, I hope noble Lords will forgive me for saying that I regret any amendment to this Bill being necessary at all. I hoped that the barriers were breaking down between pop and rock, rock and jazz, jazz and classical music; between all kinds of music. I hoped that those borders were no longer necessary.

Recently we experienced the amazing fact that Pavarotti was top of the charts with a great classical aria by Puccini. That astounded everybody. I am happy to say that Domingo and Carreras were also top of the charts with the same aria. A few years ago that would have been thought impossible. If that is not a breaking down of the barriers, I do not known what is.

I hope that whoever obtains the licence described in Clause 84(2) (ii) will pay scant attention to definitions. They do not help music at all. I doubt that I shall
756
single-handedly be able to persuade your Lordships not to support either the amendment of the noble Earl or the amendment of the noble Viscount, but that is my view.

My Lords, this great movement which inspires so many of us is eloquent about most current controversies but has not ventured to take part in the one concerning rock and pop. I am therefore only able to speak personally.

I completely support the noble Earl, Lord Ferrers. I do not see why it is not possible to have a channel which incorporates pop, jazz rock, Latin American and African music all mixed up. The object of such a channel is not to be a fillip for any specific record or music industry; the intention is to please listeners.

The suggestion that a non-pop channel must be like Radio 3 is a false argument. There are scores of books and records of music which cannot strictly be defined as classical; there are programmes which are not classical. There has always been "end-of-the-pier" music. There have always been popular concerts such as the Brand-Lane concerts we used to have in Manchester where gems of opera would be sung. That was entirely different to the high class, highbrow, small minority audience of Radio 3. That channel should be kept as the Government intend.

The authority should encourage a good mix of modern popular music in its broadest sense for the channel which has been wrongly described as "pop". There is nothing worse than a channel entirely devoted to the top pop 40. I would not wish the ears of my grandchildren to be assaulted by that. I like rock, but find that a very little of it goes a long way.

My Lords, I am probably the least qualified Member of your Lordships' House to intervene on the subject of music. It was by accident rather than design that for a brief moment I strayed into the world of concerts and concert promotion to find that all my prejudices were turned upside down. I do not understand why at this time my noble friend Lord Ferrers is seeking to define something so obviously Indefinable.

I believe that there are 87 different definitions of music. The first definition is "early"; the second is "first classical of the Viennese school". Some time later when popular music began, there came "classical of the second Viennese school". We are speaking of things that endure the test of time. It is a matter of tests and time and tastes.

If I remember correctly, what usually happens when one begins listening to music is that one listens to something that has already come of age. Those of us brought up in the impoverished 'fifties and who were bachelors in the swinging 'sixties were forced initially to listen to the music of the 'thirties and 'twenties on old poor quality 78 records. My own ended up as substitute clay pigeons out of some top floor window many years later.

Those of your Lordships who were brought up in the 'thirties will undoubtedly remember that Stravinsky's "Rite of Spring" was disrupted in 1913 during its first concert but then became extremely
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popular music. I believe that Tchaikovsky's piano concerto had the same reception. It was rejected by the pianist on the occasion of its first performance.

What I am trying to say is that I believe it is utterly impossible to define in legislation what is a changing, shifting taste. Some of us have had the privilege—I did not think I would use the word "privilege"—of going to observe mass gatherings, a form of political rally, at Wembley. I saw there someone I thought was a boxer but who turned out to be a singer. I thought that he was aged 20 but it transpired he was older than myself. It has been amazing watching the change in the people who go to these places and obtain enjoyment.

When does classical music become popular or popular music classic? We have been given the example of Pavarotti. It is amazing how one man singing an old aria can change people's attitude overnight. For a government to attempt to define music leads one to think of when Nazi Germany banned jazz because it was associated with black people. Perhaps we are forgetting the ethnic minorities. I would not dare to attempt such a definition. One reason why authorities are created is to distance government from embarrassing situations that might even lose votes. The creation of the authority is such that we should leave this matter of definition to the authority and not to government.

My Lords, I support the noble Lord who has just spoken. It seems to me as one who has never, and never intends, to listen to pop or rock music that people should listen to what they want to hear. Nobody should tell them what it is called. The noble Lord said that in the 'fifties people were unlucky to have to listen to the music of the 'thirties. Well, I come from the 'thirties and I think we were jolly lucky to be able to listen to Chicago school jazz, and so on, which is now quite dead.

There cannot be any laying down of music in definitions. Surely a music programme will state that it is going to broadcast, say, Beethoven, Bach, Haydn and so on, or another programme will state that it will be broadcasting—I cannot remember any of the names—music that is pop, rock or whatever it chooses. It would appear to me that we are going into the sort of detail that is absolutely not the business of government and never should be.

My Lords, I speak as a director of Jazz FM, the radio jazz station in London, and as perhaps a rather ageing musician who still plays a little rock and roll. Jazz music is becoming much more popular. It does occasionally go thump, thump, thump and is certainly recognised at times by strong rhythmic elements and reliance on electronic amplification, but I should like the Minister to confirm that jazz will not be prevented from making a bid for one of the new national radio franchises.

My Lords, I think I understand the reasons why the noble Earl has tabled this amendment. I am not absolutely sure, but I think I do. My understanding of the position is that the aim
758
of the clause is admirable and that the object of the exercise is to ensure that there are some openings, some facility or arrangement to resist the inexorable march of the most popular types of music and to preserve an area in which some classical music and other programmes will be heard. The clause provides that the authority shall ensure that,
one is a service the greater part of which consists in the broadcasting of spoken material".
That is quite clear and that caters for one section. The clause then states that,
another is a service which consists, wholly or mainly, in the broadcasting of music other than pop music".
That, too, is quite clear because if one did not have such legislation there would be nothing but pop music. That is obvious.

However, why do we go to the further stage of defining pop music? Here I believe that we run into difficulties. I listened to the noble Earl but I am not sure whether I actually got the point. For what reason has he decided to include the definition? I believe that the answer is that within the range of pop music there are elements who no longer consider themselves to be pop. Therefore, they want to be free from the exclusion, so to speak, which is made for pop music generally. For example, I agree that jazz is not pop music in the sense that it is the most popular but is perhaps the taste of a declining minority.

Music goes into popular areas and then declines, but revivals take place. One cannot be sure at any time as to what is and what is not pop. That is where we run into the difficulty of definition. We have in the Bill a definition which is current at the moment. On the whole, provided one is sure that the purpose of the Bill is served—in other words, that there are two areas which are preserved for the less popular tastes, as I believe is already the case—I should have thought that the original definition of pop is best left as it is and the interpretation left to the authority. That would appear to me to be the right decision. Therefore, I still do not understand—it is possible that the noble Earl may yet convince me—why it has been felt necessary to include the definition in the Bill and why it could not be arranged either that this could be done by secondary legislation or left to the authority. Perhaps when the noble Earl replies he will explain a little further to my ageing and uncomprehending mind what it is that forced him to introduce the amendment.

Earl Ferrers

My Lords, I knew that we would run into the sands on this amendment. The noble Lord, Lord Birkett, said that he wished to goodness we did not have to define pop music. My noble friend Lord Selsdon said the same and the noble Lord, Lord Jenkins of Putney, said that he could not understand it. Frankly, we wish that we did not have to define it because we knew the trouble that it would cause.

However, the main reason is that of the three national stations one will be speech based, one non-pop based and one other. The chances are that the other will turn out to be pop because it is popular. It transpired that there were those who thought that they could bid for the non-pop station with rock music. To many people rock is similar to pop. There
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are those who have rock music, soul music or heavy metal—that is another form of music; there are many types of music—and if those people are going to bid for the non-pop licence we would end up with two stations broadcasting what is virtually pop music. Therefore, much to our regret we found it appropriate to seek to define pop.

My noble friend Lord Selsdon said in an empirical way that it is impossible to define pop, but all I can say to that is that we have done it. If my noble friend asks how we have done it I can tell him that we consulted Collins English dictionary. Therefore, we are not treading new ground.

The noble Viscount, Lord Falkland, hoped that we would be able to lessen the distance between us. I do not know that there is all that much distance between us. We have nothing against pop music. All we are saying is that it should be restricted to the third channel and not be broadcast on other channels which are supposed to be for non-pop music.

I was a little surprised when the noble Viscount said that there would be nothing but classical music on the station. Musically speaking, his mind must be a cultural desert if he thinks that there is nothing between classical music and pop. In fact there are many forms of light music—easy listening music, operettas, jazz, and so on—all of which are different gradations between strict classical and pop music. That is why we believe that it is not desirable to have that sort of music on two of the three channels.

The noble Viscount, Lord Falkland, also referred to Phil Collins and Bruce Springsteen as examples of rock musicians. That highlights the problems with Amendments Nos. 220A and 220B since both those gentlemen have also regularly had pop singles in the top 40 records. So any amendment that is based on this definition is on weak ground. The noble Lord, Lord 13irkett, referred to the fact of how wonderful it was that Domingo and others have appeared in the top 40 record charts. That is fine and that is what we have tried to avoid defining; namely, that pop music does not mean those who are in the top 40. It means the curious arhythmical arrangement which is expressed in the amendment which I tabled.

I hope your Lordships will realise that there is nothing sinister in this amendment. We are merely trying to preserve the ears of the grandchildren of the noble Lord, Lord Ardwick. If they wish to have their ears assaulted they can easily do so by turning on the Third Programme, but they will not have to turn on the Second and the Third Programme. I hope with that definition—or at least an explanation—your Lordships will agree that this amendment is regrettably desirable.

§Baroness David moved Amendment No. 217:
Page 72, line 24, at end insert (", including community services, which under this part shall be defined as non-profit distributing services which broadcast minority appeal, socially purposive, open access programmes.").

§
The noble Baroness said: My Lords, the noble Earl very kindly said that he would write to me in answer
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to some of the questions that I raised when I spoke about student radio in connection with this amendment. Will he be kind enough to let me have that letter in good time before the next stage of the Bill? I beg to move.

Earl Ferrers

My Lords, I shall certainly do my best to achieve that. If I may use a Midlands expression, I shall have to make haste. I shall do my best to see that that is done.

§
The noble Baroness said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 262. We return to the question of quality which was discussed both at Second Reading and at Committee stage. At Committee stage Amendments Nos. 231 and 232 proposed that national and local services separately should be of high quality. This amendment eases the situation because it proposes the provision of licensed services which, taken as a whole, are of high quality. That would cover both national and local radio. It will also balance out the high quality requirement over the whole range of services rather than requiring all services specifically to be of high quality.

§
The wording of the amendment matches that contained in Clause 2(2)(b) almost exactly in requiring high quality services for television taken as a whole. Therefore, we feel that the Radio Authority should be under the same general duty as the ITC. Listeners are entitled to high quality in the same manner as viewers. While high quality may not be achieved in every radio service, the principle of high quality in broadcasting across a range of services should be maintained for radio as well as television. Though there are clearly differences in the need for regulation between radio and television, the principle of high quality is something which listeners demand and deserve as much as viewers. It is a matter which some of us have been trying to have included in the Bill, sometimes with a modicum of success and sometimes not.

§
I now turn to Amendment No. 262. It asserts that licence conditions should ensure that the quality as well as the character of licensed services is maintained. The authority should be placed under a duty to secure that the quality of radio services is kept up. That would supplement the need for the authority to secure high quality national and local radio services taken as a whole. Even if earlier amendments to secure a high quality requirement in independent radio services are unacceptable, this amendment reasserts that the maintenance of quality should be a primary responsibility of the authority. I find it hard to see how anyone can disagree with that reasonable proposition.

§
If the authority is only under an obligation to maintain the character of radio services, it suggests that it merely has to monitor the services and not judge whether they continue to be good, bad or
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indifferent. For the authority to be able to monitor services effectively, it must be able to apply some form of judgment, however subjective, as to the maintenance of the quality of radio services. In the end, it comes down to the fact that all these judgments must have an element of subjectivity in them.

§
It is interesting to note that in the latest draft of the Bill, as amended in Committee, there is an interesting amendment which was not debated by noble Lords. In the heading in the margin relating to Clause 105 the word "character" appears. That word replaces the word "quality" which appeared. The three previous versions of the Bill all contained the heading:
Requirements as to quality and coverage of national and local services".
The heading in the Bill now reads:
Requirements as to character and coverage of national and local services".
Is that a small error or has it been determined? Is there something even more sinister to it? I beg to move.

My Lords, I support the noble Baroness, Lady Birk, in moving this amendment. We debated similar amendments at some length at Committee stage. It seemed that on that occasion there were two misunderstandings as to what we were talking about. One misunderstanding was that, in some way or other, quality meant highbrow. The noble Earl, Lord Onslow, said:
Members of the Committee opposite say that people must have quality forced down their throats. Surely people are capable of knowing the difference between what is quality and what is not".—[Official Report, 24/7/90; col. 1397.]
I wish to put it on record that in my view, and I think that of most noble Lords on this side of the House, quality does not mean highbrow, but high quality of whatever order we are concerned with. For example, the debate which we have just had I found somewhat mystifying. There can be high quality jazz and high quality pop besides high quality rock and high or low quality opera. Therefore, this amendment has nothing to do with the kind of elitist definition of quality. That is important.

The second misunderstanding was not resolved when it was discussed before. It related to the question of why one should be able to define quality in television which could be included in legislation, but it was impossible to define it or include it in legislation concerned with radio. The noble Earl, Lord Ferrers, said:
We must be wary of assuming too quickly that arguments which hold good for television hold equally good for radio. They are not the same. Radio is different. The impact of the spoken word is different from the impact of the screen". [Col. 1398]
That was in response to a question which I put to him. I asked him: if the ITC can define exceptional quality, why was it impossible for the Radio Authority to define quality?. I am still confused as to why that should be so. The spoken word can be classified as of high quality or of low quality just as much as the visual image that one sees on television. Now that
762
radio is no longer enjoined, as it was in the past, by the public service duties of the 1981 Act, it is all the more important that radio should be enjoined to pursue an objective of high quality. It is primarily for that reason, whether it be local radio or national radio, that we support the amendment.

My Lords, I support this highly desirable amendment. It seems to be clear, which is a great merit, and desirable, which is another one. I can see nothing against the amendment and everything in favour of it. I hope the noble Earl will find it possible to accept it.

Earl Ferrers

My Lords, I always do my best to be as helpful as I can. I can give the noble Baroness some good news and a little bad news. Perhaps I may give the bad news first. For reasons which I shall try to explain, I believe that the good news is rather more significant than the bad news.

I am afraid that I would not be able to recommend acceptance of the second of the two amendments, Amendment No. 262, which would reinsert a reference to quality in subsection (1) of Clause 105. The noble Baroness wondered whether this was a mistake or whether the words had been smuggled in. At an earlier stage the Government secured deletion of the words "quality and" from this very line of the Bill. We did so on the basis that a reference to quality here added nothing and was misleading. It is important to remember that this subsection is concerned not with the licensing criteria to be followed by the Radio Authority, or even with the general duties of the authority, but simply with the means of ensuring that a licensed radio service lives up to its promise of performance and does not depart from its proposed programming remit. The reference to quality in the original version of this subsection of the Bill therefore meant no more than that a station had to go on being the sort of station which it had promised to be. It therefore did not add anything significant to the words "the character of the licensed service". This conclusion is reinforced by the fact that there are no quality criteria—as opposed to diversity criteria—in the licensing tests for radio stations. It therefore continues to be the case that no useful purpose would be served by reinstating the reference to quality in this subsection. Indeed, it would be misleading. I know that this point of view is shared by the shadow Radio Authority.

I am happy to say that I can accept the proposed amendment in line 29 on page 72 to Clause 84. The Government have consistently been reluctant to import subjective quality criteria into the licensing tests for either national or local radio. We have been influenced by the considerations that radio is different from television; that there would be problems in introducing subjective regulatory judgments about quality into a licensing process which is based instead on the idea of diversity and expanding listener choice; that the Radio Authority itself has no wish to be put in a position of making such judgments; and that excessive quality requirements could seriously impede the growth of independent radio, for which there is great potential. This amendment, however, does not
763
seek to introduce a first order quality criterion into the licensing process. Instead it operates on the general duty c f the Radio Authority as to how it discharges its licensing functions. It would require it to facilitate the provision of licensed services which, taken as a whole, are of high quality and offer a wide range of programmes calculated to appeal to a variety of tastes and interests. Such a general duty could not override the specific licensing criteria for national and local radio contained in Clauses 97 and 104 respectively, and both these clauses would continue not to include a quality requirement.

That does not mean that the proposed amendment would not have significant effect. If, for instance, the Radio Authority were to consider that two or more applications for a particular local radio licence satisfied the local radio licensing criteria equally well, it would be able, if this amendment were made, to settle the issue by opting to license the proposed service which it considered was best in terms of the across-the-board quality of radio services. The amendment would also mean that exceptional quality differences could be regarded by the Radio Authority as a relevant factor in any consideration of whether exceptional circumstances applied in the licensing of national radio services.

The Government naturally see force in the argument that it would be strange if, in carrying out its general duties, the Radio Authority had no obligation to have a care for the quality of independent radio services taken as a whole. In the light of my acceptance of the first amendment, I hope that the noble Baroness will feel able to withdraw the second one.

My Lords, I am quite delighted that the Minister has been able to accept the first amendment, which is by far the most important of the two as it deals plainly and centrally with the concept of quality. In that event I shall not move Amendment No. 2.52 when we come to it.

§Lord Bonham-Carter moved Amendment No. 219:
Page 72, line 32, at end insert:(3A) The Authority may use any of its revenues for the purpose of establishing or maintaining services pursuant for the purpose of subsections 2 and 3 above, if otherwise a service worthy of being established or maintained would not be so established or maintained.").

§
The noble Lord said: My Lords, the House will remember that the noble Earl, Lord Stockton, withdrew his amendment in favour of Amendment No. 219, which was our version of the "radio fund", if I may put it that way. It allows the Radio Authority to use its revenues if a service worthy of being established or maintained would otherwise not be so established or maintained. The amendment gives the Radio Authority that right; it does not instruct it to do so.

§
Secondly, it does not propose a permanent subsidy. It seeks to offer help in getting over a difficult moment. Thirdly, the noble Lord, Lord Chalfont, said that if the money came from the Radio Authority's funds, struggling stations would be helped by successful stations. That is indeed true. That is the only way it
764
can work. Almost all public funding means that the more successful help the financially less successful. I see nothing wrong with that any more than I see anything wrong in principle in a cross-subsidy.

§
If indeed we want to will the end, which is a thriving local radio network, we must will the means, especially at this time, by helping them to get over initial difficulties. In view of the noble Earl's response to the proposal, I feel that I must test the opinion of the House.

Earl Ferrers

My Lords, we discussed this amendment fairly fully with Amendment No. 210. I am disappointed that the noble Lord says that he wants to test the opinion of the House. However, he is perfectly entitled to do so if that is what he wishes. We must be perfectly clear what he is doing. He is suggesting that the Radio Authority should appoint a body of people who would work at the taxpayers' expense to set up radio stations in places where the demand would not otherwise support a service. These stations would operate without fear of competition since they would be securely funded by public money. That would not be consistent with the authority's duty to try to ensure fair and effective competition.

The House will also know that the noble Lord, Lord Chalfont, the chairman of the shadow Radio Authority, has himself said that he would not welcome this. Where will the money come from? It will come from the licence holder because the Radio Authority has no money. That will mean, as the noble Lord, Lord Bonham-Carter, quite openly admitted, that the successful licensees will be obliged to pay money—almost, as it were, a tax—into this fund which will then be distributed, by this body of people set up at the taxpayers' expense, to those proposed licensees who could not manage without it and for whom, in a straightforward commercial transaction, there would be no call. That would not be suitable and I cannot advise the House to accept the amendment.

§Earl Ferrers moved Amendment No. 220:
Page 72, line 45, at end insert:(5A) In subsection (2) (a) (ii) "pop music" includes rock music and other kinds of modern popular music which are characterised by a strong rhythmic element and a reliance on electronic amplification for their performance (whether or not, in the case of any particular piece of rock or other such music, the music in question enjoys a current popularity as measured by the number of recordings sold).").

§
The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 216. I beg to move.

§The Viscount of Falkland had given notice of his intention to move, as amendments to Amendment No. 220, Amendments Nos. 220A and 220B;
Line 5, leave out ("whether or not") and insert ("so long as").Line 6, leave out ("enjoys a current popularity as measured by the number of recordings sold") and insert ("has at any time attained a position in the top forty of a sales-based singles chart selected by the Authority.").

§
The noble Viscount said: My Lords, I have already spoken to these two amendments; indeed, we had a very useful debate on the topic. Despite the fact that we have not moved any further forward in the matter, I have no intention of dividing the House because I do not think that many noble Lords understood the arguments. However, I reserve the right to return to the matter at a later stage of the Bill's proceedings if we manage to find a way of getting through that morass. Therefore, I shall not move the amendments.

§
The noble Earl said: My Lords, this is a minor technical amendment to make clear that nothing in Part III of the Bill should be taken as affecting the Radio Authority's operation of Clause 87(2) (b) and (c). I beg to move.

§Lord Bonham-Carter moved Amendment No. 222:
Page 74, line 7, at end insert:("() conditions requiring that the costs incurred in respect of the broadcasting services (taken as a whole) are shared by the licence holders in such manner as may be approved by the Secretary of State:").

§
The noble Lord said: My Lords, the amendment is another attempt on our part to ensure that the rural areas do not lose out as a result of the privatisation of the transmission system. The Bill will end the cross-subsidy arrangements by which the larger and cheaper to run stations such as Capital provided funding for the smaller stations serving far-flung areas
767
such as the Highlands. When my noble friend Lord Thomson spoke to a similar amendment in Committee, the Minister said:
The noble Lord is on to a fair point. I shall consider what he and other noble Lords have said".—[Official Report, 24/7/90; col. 1425.]
I therefore look forward anxiously to hearing to what conclusions the Minister's considerations have led him.

§
As I understand it, the Government have accepted the fact that stations in areas such as the Highlands, Cumbria or the South-West are more expensive to provide television services for than, for instance, the City. My noble friend gave the example of London which is dealt with by one transmitter and an area in Scotland which had to have 17 transmitters so that the smaller population could receive a decent service.

§
Therefore the Government in their wisdom - I say that in all seriousness—agreed to a mechanism whereby the transmission system in those areas could be assisted to provide a service to the public which the public deserve. They have not done that in the case of radio. For the life of me, I cannot understand why, became they admit, as I understand it, that unless something of that type is arranged large parts of the country will be unable to receive local radio. National radio stations will not cover more than 70 per cent. to 80 per cent. of the country. There will not be the kind of universal radio coverage that the BBC provides.

§
At present, if one looks at a radio map of the South -West, Mid-Wales, Cumbria or much of rural Scotland, one will find that they are without local stations and are known as what are called white areas. Increased costs following the privatisation of the transmission services and the ending of subsidies will have two results. First, it will make some existing stations cease to be viable: they will go out of business; and, secondly, it will mean that those white areas will not b filled in. No one disputes either of those propositions. The dispute is about how important that is and whether those people deserve, as a public service, to receive a better service than they will.

§
In the amendment we propose a way to deal with that problem. Unless the Government accept that in this case a cross-subsidy is necessary in the public interest, the great radio revolution that they have launched will, for rural areas, be a revolution in the sense that in some cases they will be deprived of services which they have been receiving and in other cases they will never receive the services that they might receive. It is for that reason I feel that the amendment is a reasonable one. Having examined the points made in Committee, which I have not on the whole repeated, I hope that the Minister has come to a positive and constructive conclusion. I beg to move.

My Lords, I support the noble Lord, Lord Bonham-Carter. There is a real problem, especially in rural and outlying regions, because once the transmission is privatised the cost will be disproportionately high for many of those areas. The amendment would help to guarantee maximum coverage for listeners in all areas and ensure—this is
768
most important—that a minority of the audience is not disadvantaged by the fact that some radio services would have to pass on excessively high transmission costs.

It is a difficult problem. Everything possible must be done to minimise the high costs that might be fastened on to some people merely because of the area in which they live.

Earl Ferrers

My Lords, I did say in Committee that the noble Lord was on a fair point. I have considered it. The amendment would reintroduce a radio cross-subsidy system of a type which has proved unpopular, even under the present legislation, and which had been consistently opposed by much of the radio industry.

There will be much less justification for having such cross-subsidy under the new regime proposed in the Bill than there has been until now. In future there will be many more services, and some areas and localities will have a whole range of independent local and community radio stations. In a more competitive environment, in which new entrants can enjoy lower start-up costs as a result of the lighter touch regulation, it would be that much more unfair to expect some stations to subsidise others. It would run contrary to the Green Paper proposals and to the Government's wider philosophy to force certain radio stations to prop up stations which would not otherwise be viable. That does not mean that areas which at present have no independent radio must continue in this state and will never have it. They can start up much more easily and cheaply than they can now. Of course frequency availability is a great deal better—the noble Baroness will take this point into account—in rural areas than it is in urban areas.

It has been argued that radio and television should be treated similarly for the purposes of transmission cross-subsidy; but the differences greatly outweigh the similarities. There is scope for many more radio than terrestrial television services. The need for relay transmitters is nowhere near as great for radio as for television, and radio transmission costs are far lower. Independent radio has historically not achieved, or even aspired to, universal geographical coverage of the UK in the way that ITV has. Radio stations will have much greater freedom to determine their own transmission costs than Channel 3 companies.

Our approach is to give radio stations greater freedom to fix their costs, while at the same time providing an agreed transitional package to enable existing stations to adjust to the new world in which they will be. This package has been carefully worked out and agreed by the Government, the shadow Radio Authority and the industry. The existing stations will have the opportunity of entering into transitional transmission contracts with the IBA's privatised transmission successor. During the transitional period, those stations whose transmission costs will exceed what would have been their rentals will not have to pay any more than that latter amount.

Stations will have the opportunity of buying from the IBA transmitting equipment such as transmitters
769
and aerials. That is for the transitional period. I suggest that once we get into the new period and new regime, it would be undesirable to perpetuate a system which, as I said, has been fairly unpopular.

My Lords, I thank the noble Earl for his reply, but I am naturally disappointed that his considerations have led to such a negative response.

He must bear in mind the fact that in remote rural areas local radio is particularly important. That is one reason why this amendment has a genuine and constructive approach. The noble Earl referred to the fact that cost subsidy was somewhat unpopular. I assume that he was speaking of its unpopularity with the more prosperous radio stations rather than with the listeners who received local radio and who will not in the future have an opportunity of receiving it because of the abandonment of this principle.

As I understand it, the noble Earl's objection to cross-subsidy is one of principle. That being the case, I find that the differences which he draws between the transmission arrangements for radio and television are somewhat tenuous arguments against providing the same kind of cross-subsidy for radio. Of course, it would be much cheaper for radio than for television. Therefore, it is with disappointment that I listened to the Minister's reply; but in the light of it, I beg leave to withdraw the amendment.

§Lord Colwyn moved Amendment No. 222A:
Page 74, line 11, at end insert ("and requiring the licence holder to reimburse to the Authority any costs incurred by the Authority in connection with, or resulting from, a breach of any condition in the licence").

§
The noble Lord said: My Lords, I am in some difficulty with Amendment No. 222A. It was tabled in a great hurry last week as I expected it to be discussed last Thursday. Since then, after discussions with the IBA and the Association of Independent Radio Contractors, the amendment has been found to be incomplete and I intend to make some minor changes to it. I seek the permission of the House to withdraw the amendment this afternoon and to reintroduce it on Third Reading.

§
However, I feel it may be beneficial to briefly explain the aim of my amendment so that I can have the benefit of advice from my noble friend Lord Ferrers. The amendment concerns the payment of fees to the Radio Authority. Clause 86(4) provides that a tariff fixed by the authority may specify different regulatory fees in relation to different cases or circumstances. Not all the cost elements which need to be taken into account in calculating a general tariff of fees can be quantified with equal certainty. To be specific, the costs of special investigation into programme output in languages other than English and possible contraventions of transmitted signal strength would be relevant to this provision.

§
Without the amendment, the Radio Authority might have to inflate the tariff unreasonably to allow for those eventualities in such a way that that would
770
compel law-abiding stations to subsidise the costs of policing miscreants. My amendment is designed to permit a general condition in licences entitling the Radio Authority to reimbursement of any costs incurred in connection with or resulting from a breach of the conditions which I have described in the licence.

§
Although I intend to withdraw this amendment—and I apologise to the House for taking up a few moments this afternoon—I should be grateful if the Minister could indicate whether he is willing for me to move this amendment on Third Reading. The new words will be available for examination tomorrow afternoon. I beg to move.

Earl Ferrers

My Lords, my noble friend has explained that he wishes to withdraw this amendment and come back with a modified form of words on Third Reading. We have no difficulty with the aim behind the amendment. If a technically acceptable revised form of words is tabled on Third Reading which has the same effect as this amendment, I expect that I shall have no difficulty in recommending acceptance of such an amendment.

§Earl Ferrers moved Amendments Nos. 224 and 225:
Page 76, line 5, at end insert:("(3A) Those provisions shall not so have effect if the Authority decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a licence, or (as the case may be) a further licence, to provide the service in question.").Page 76, line 12, leave out from ("(5)") to ("a") in line 13 and insert ("The Authority shall not serve any such notice on the licence holder unless they have given him").

§
The noble Earl said: My Lords, in moving Amendment No. 226, I shall speak also to Amendment No. 227. These amendments insert a consumer protection requirement relating to the possibility that techniques may be developed for broadcasting subliminal messages in sound transmissions. I have no reason to suppose that any subliminal messages are being broadcast on the radio at the moment. However, it seems sensible to provide a safeguard against any future abuse in the same way as the Bill already does in the case of television. I beg to move.

§Earl Ferrers moved Amendment No. 227:
Page 77, line 2, at end insert ("; and(c) that its programmes do not include any technique which exploits the possibility of conveying a message to, or otherwise influencing the minds of, persons listening to the programmes without their being aware, or fully aware, of what has occurred.").

§Earl Ferrers moved Amendment No. 228:
Page 77, line 7, leave out from ("(a)") to end of line 10 and insert ('the appropriate requirement specified in subsection (2A);").

§
The noble Earl said: My Lords, with Amendment No. 228, I shall speak also to Amendments Nos. 229, 230 and 231. I spoke to Amendments Nos. 228, 229, 230, 231, 234 and 235 with Amendment No. 85 which the noble Baroness, Lady Birk, moved last Thursday. With your Lordships' consent, I withdrew Amendment No. 89 and the other associated amendments to Clause 6 which were in my name and the noble Baroness withdrew Amendment No. 85.

§
Your Lordships will recall that Amendment No. 89 set out the areas which the ITC's impartiality code should cover. There is no equivalent amendment with a contents list for impartiality for radio. Therefore, I shall move the radio amendments to Clause 89 which were included in the group with Amendment No. 85.

§
Amendment No. 230 requires that a national radio service shall be subject to the due impartiality rule rather than the lighter undue prominence test. Amendment No. 231 makes provision for due impartiality to be achieved in a national radio service over a series of programmes rather than the service as a whole. The remainder are consequential amendments. I beg to move.

My Lords, I want to be quite clear on this matter. The Minister's Amendment No. 89 and its consequentials were withdrawn while awaiting the new amendments which the Government wish to put forward on Third Reading. I want to be sure that there is nothing in the amendments which he has just moved regarding radio which is equal to the amendment withdrawn as regards television.

Earl Ferrers

My Lords, the noble Baroness will recall hat we were discussing the contents list which was to go into the ITC's code of practice. In the general flurry after that debate, a number of amendments which were grouped together were not moved. Those amendments do not refer to the contents list of any code. In other words, the Radio Authority will draw up a code but there will not be a contents list such as suggested by the ITC. Therefore, Amendment No. 89 which was withdrawn does not have a bearing on these amendments.

§Earl Ferrers moved Amendments Nos. 229 to 231:
Page 77, line 11, after ("that") insert ("(without prejudice to the generality of subsection (1) (b) or (2A) (a))").Page 77, line 22, at end insert:("(2A) The appropriate requirement referred to in subsection(2) (a) is—
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(a) where the licensed service is a national service, that due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current political policy;

(b) where the licensed service is a local, satellite or licensable sound programme service, that undue prominence is not given in its programmes to the views and opinions of particular persons or bodies on such matters.").

Page 77, line 23, leave out ("(2) (a) to any licensed") and insert ("(2A) (a) to a national service a series of programmes may be considered as a whole; and in applying subsection (2A) (b) to a local, satellite or licensable sound programme").

§Earl Ferrers moved Amendments Nos. 234 and 235:
Page 77, line 26, leave out from ("guidance") to ("and") in line 29 and insert:

("(i) as to the rules to be observed in determining what constitutes a series of programmes for the purposes of subsection (3),

(ii) as to the rules to be observed in other respects in connection with the application of subsection (2A) (a) in relation to a national service, and

(iii) as to the rules to be observed in connection with the application of subsection (2A) (b) in relation to a local, satellite or licensable sound programme service;").

Page 77, line 31, at end insert:("and the Authority may make different provision in the code for different cases or circumstances.").

§
The noble Earl said: My Lords, Amendment No. 234 was spoken to with Amendment No. 85. I also added some further remarks to Amendment No. 234 just now. I beg to move Amendments Nos. 234 and 235 en bloc.

§Earl Ferrers moved Amendment No. 239:
Page 77, line 33, at end insert:("(6) Nothing in this section or in sections 90 to 95 has effect in relation to any licensed service which is an additional service.").

§
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 84. Government Amendment No. 93 was also spoken to with Amendment No. 84. Unfortunately, after the excitement of the amendment on impartiality, I regrettably and inadvertently omitted to move Amendment No. 93 when we reached it on the Marshalled List. I should like to take this opportunity to apologise to the House for that oversight and to seek the leave of the House to retable the amendment on Third Reading.

§
As your Lordships will recall, Amendment No. 93 fulfilled a commitment which was made in Committee to my noble friend Lord Swinfen to apply the provisions of Clauses 7 to 12 of the Bill to a designated teletext service, but not to other additional service licences. Amendment No. 239 has the same effect for radio. I beg to move.

§
Clause 94 [Monitoring by Authority of programmes included in licensed services]:

§Earl Ferrers moved Amendments Nos. 241 and 242:
Page 81, line 2, leave out ("make and").Page 81, line 3, leave out ("any matter included by him in any") and insert ("every").

§
The noble Earl said: My Lords, in moving these amendments, I wish to speak also to Amendments Nos. 243 and 244. These subject matters were discussed earlier under Amendments Nos. 99 and 101. I beg to move Amendments Nos. 241 and 242 en bloc.

§Earl Ferrers moved Amendments Nos. 243 and 244:
Page 81, line 17, leave out from beginning to ("and") in line 18.Page 81, line 19, leave out ("(c)") and insert ("for the purpose of assisting them to perform their functions under Chapter II in connection with the programmes to be included in national and local services, for ascertaining").

§
The noble Baroness said: My Lords, in moving Amendment No. 245 I wish to speak also to Amendment No. 246. Amendment No. 245 removes the economic viability test to be applied by the authority but retains the requirement to make the best use of the frequencies available. I said at the beginning that in the parallel areas relating to television the viability test is implicitly but not explicitly stated. We feel that this is something which should be taken into account when licences are allocated.

§
If these new independent channels are to compete effectively with the BBC services, the coverage must be as great as is technically possible. It should not be governed by strict economic criteria. This does not mean that the new national channels should be subject to exactly the same coverage requirements as the BBC, particularly as some of the spectrum may be needed for new community radio services.

§
Amendment No. 245 interlocks with a subsequent amendment, Amendment No. 246, requiring national services to be available throughout the UK. However, the authority should still aim to achieve universal coverage for national radio services to compete with BBC national public service channels. We recognise, however, that there may be technical reasons why the new FM channel and possibly the two AM channels taken from the BBC may not be able to achieve 99.8 per cent. coverage.

§
Amendment No. 246 obliges the authority to set a minimum area of coverage for the national radio services which can be received by the overwhelming majority of the population within the necessary technical and commercial constraints. I beg to move.

My Lords, I believe that when the noble Baroness said that she was also speaking to Amendment No. 246, she meant to include also Amendment No. 265 as they are grouped together.

It would, of course, be excellent if radio services were able to serve everyone within their coverage area from the moment they came on the air. In reality, however, this is quite impracticable. The BBC has been providing national radio services for many years and is subject to universality obligations. But even its coverage is not yet complete. The BBC plans to spend about £26 million over the next few years building new transmitters at the rate of about 20 per year, and even that will not result in 100 per cent. coverage. Radio 1, for instance, now has its own FM frequencies but currently reaches less than 90 per cent. of the population on FM and will not reach 97 per cent. before 1993.

Building transmitters is an expensive and time consuming business. If new stations had to ensure that their transmissions would reach everyone in their licensed area as soon as they began broadcasting, few would ever come on the air and we would probably never have any independent national radio stations. The Bill accordingly provides a degree of flexibility for services to grow over a period. Clause 105(3) which would become redundant as a result of these amendments, puts the rate of growth under the Radio Authority's control. I believe that that is the right approach. Obviously every new station will want and will try to reach as much of its service area as possible as quickly as it can. But we cannot oblige it to achieve the impossible.

Amendment No. 245 would delete Clause 97(2)(b) which is an important element in the introduction of independent national radio. We have to face the fact that imposing a universality requirement on the new FM operator in particular would virtually ensure that the service never gets started. The clause spells out the Government's policy that the independent national services should reach as much of the country as they can without damaging their prospects for sustaining the service. It also provides for a balance in the use of the frequencies, as any which are not used for the national station will be available for new community radio services. What this means in practice is that the Radio Authority will determine the minimum coverage area for the national licensees, leaving it open to applicants to propose a greater degree of coverage if they consider it appropriate and possible within their resources. The authority has not yet finalised its requirements in this respect, but I understand that it may be looking for at least 85 per cent. as the minimum coverage area, which would include a reasonable proportion within each of the national regions and not just concentrate on England. We have to understand that beyond a certain point each transmitter adds only about 0.1 per cent. to the total coverage but is as expensive as the previous transmitter. At that rate I think noble Lords will appreciate that there must be a point at which it becomes quite uneconomic to extend any further. The Bill provides for the Radio Authority to judge when
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that point is reached. I believe that is the proper way to proceed and I hope the noble Baroness agrees with me.

My Lords, I thank the Minister for that explanation. The amendments I have referred to are partially probing amendments. In the light of that, I shall beg leave to withdraw the amendments. However, if there is anything further that I wish to consider, I shall return with a further provision on Third Reading. I beg leave to withdraw the amendment.

§
The noble Lord said: My Lords, the amendment draws its inspiration from the amendment moved in Committee by the noble Baroness, Lady Birk, who made a plea for live music. There must be a temptation for radio stations to rely heavily on past recordings because that is so much cheaper, but it is a dismal prospect if that occurs on a wide scale and no contribution whatever is to be made to the living arts.

§
The amendment extends beyond music and indeed beyond "live". There can be no objection if the original production is recorded to be broadcast at some future time which is convenient to the radio station. The types of programme that I have in mind as original productions are programmes that we are, already familiar with such as chat shows, quizzes, discussions and concerts.

§
In Committee the noble Earl seemed to think that all this would be much too expensive for the radio stations to contemplate. I readily admit that a symphony concert might be too expensive for one radio station, but an enterprising radio station could no doubt search for sponsors to defray the expenses of ambitious productions. In any event, a concert ranges from a piano recital to a symphony concert or an opera.

§
Incidentally, the next word in the Bill after the amendment is "calculated". That is an unwise word for draftsmen to use because "calculated" can mean one or two very different things. It can mean intended or it can mean likely. The draftsmen ought to decide whether he means intended or whether he means likely and use that word and never use the word "calculated". I beg to move.

My Lords, I should like to support the amendment in general terms. I believe that the noble Lord, Lord Airedale, is right that there should be some way of ensuring that original creative material is produced rather than everything being bought in.

However, I am not sure whether this is the right way to achieve that. The noble Lord has not specified any percentage or amount of original material, which would leave the decision open to the new Radio Authority. Nevertheless, I believe that the motivation should be included in the Bill in some form or another. If the Government feel that the noble Lord's drafting
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is not quite what is required, I hope that they will accept the spirit of the amendment and perhaps come back with something different. I believe that the principle on which the amendment is based is tremendously important. We have had the same discussion in relation to television, and the opportunities for creative writing, new music and a myriad of other matters is just as great or even greater in the field of radio.

My Lords, I am glad that the noble Lord, Lord Airedale, drew some inspiration for the wording of his amendment from what the noble Baroness, Lady Birk, said in Committee, although it threw me into confusion and I did not draw the same inspiration from it. Nor am I quite sure what the noble Lord's amendment means. The concept of original productions is not a familiar one under the Bill. We all have a vague idea of what it may mean, but the Radio Authority may not find it an easy concept to define in practice.

I was amused by the noble Lord, Lord Airedale, being unable to resist a parliamentary rocket to the parliamentary draftsman on the use of the word "calculated". It does not come into his amendment, so the noble Lord introduced a red herring when he referred to it. I have no doubt that the parliamentary draftsman will take note of what the noble Lord said, and I also have no doubt that he will disagree with him.

The important point about the noble Lord's amendment is that it is not needed. The majority of radio in this country is live and in that sense it is original. That is part of its attraction. A pop music station will not want to buy in a tape of a disc jockey when it can broadcast a disc jockey live in its own studio, where incidentally he will probably also be the engineer, researcher and producer rolled up into one.

The concept of independent productions which the noble Lord, Lord Airedale, probably has in mind is largely foreign to radio. That may well change in future as more and more services come on the air looking for good quality programmes. However, I believe that the operators have to have as much freedom as we can reasonably give them to set their programme schedules, particularly in national radio where they will have to compete with the very well-established and popular service run by the BBC in a variety of different forms.

For those reasons, I hope that the noble Lord will consider that his amendment would place an undesirable onus on Radio Authority licensees.

My Lords, the intention of the amendment was simply that in his application, the applicant should specify some what I call original and the noble Earl calls independent productions that he would broadcast in addition to past recordings. That would give the authority the opportunity to look at the application and ask "what are you going to do about originating programmes of your own?" Whether or not the applicant succeeded in his application would depend partly upon his answer to
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that question. I considered that this was something that ought to be put before the authority in considering applications. However, I do not want to press the matter further and I beg leave to withdraw the amendment.

§Earl Ferrers moved Amendment No. 248:
Page 83, line 33, leave out from ("Authority") to end of line 35 and insert ("a specified amount of money in respect of the first complete calendar year falling within the period for which the licence is in force (being an amount which, as increased by the appropriate percentage, is also to be payable in respect of subsequent years falling wholly or partly within that period).").

§
The noble Earl said: In moving Amendment No. 248, I should also like to deal with Amendments Nos. 249 to 257. These amendments have already been spoken to with Amendments Nos. 11, 52, 54 and 67. I beg to move.

§Earl Ferrers moved Amendments Nos. 250 to 252:
Page 84, line 48, leave out ("instalments of the amount specified in his cash bid") and insert ("any amounts payable by him by virtue of section 101(1)").Page 85, line 3, after ("shall") insert ("(subject to subsection (11))").Page 85, line 29, at end insert:("(11) Subsections (1) to (6) shall not have effect as mentioned in subsection (7) if the Authority decide that it would be desirable to publish a fresh notice under section 97 in respect of the grant of the licence; and similarly, where any of the following provisions of this Part provides, in connection with the revocation of a licence, for this section to have effect as if the former holder of the licence had not made an application for it, this section shall not so have effect if the Authority decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a further licence to provide the service in question.").

§Earl Ferrers moved Amendment Nos. 253 and 254:
Page 85, line 40, after ("shall") insert ("(subject to section 99(11))").Page 86, line 2, leave out ("section 110,") and insert ("any other provision of this Part,").

("(a) in respect of the first complete calendar year falling within the period for which the licence is in force, the amount specified in his cash bid;

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(aa) in respect of each subsequent year falling wholly or partly within that period, the amount so specified as increased by the appropriate percentage; and").

Page 87, line 37, at end insert:("(10) In this Part "the appropriate percentage", in relation to any year ("the relevant year"), means the percentage which corresponds to the percentage increase between

(a) the retail prices index for the month of November in the year preceding the first complete calendar year falling within the period for which the licence in question is in force; and

(b) the retail prices index for the month of November in the year preceding the relevant year;

and for this purpose "the retail prices index" means the general index of prices (for all items) published by the Central Statistical Office of the Chancellor of the Exchequer.").

§
The noble Lord said: My Lords, there are three outstanding issues in this Bill affecting radio which call for reconsideration, one of which I have already spoken to with a previous amendment. At this stage of the Bill one would not expect them to be major matters of principle; they are more matters of fine tuning. Rather, they have to do with the workability of the new legislation and the degree to which the Radio Authority will be able to operate effectively in serving the best interests of radio listeners.

§
Amendments Nos. 257A and 261A concern ownership. Clause 102 of the Bill very sensibly provides for a one-year moratorium on the takeover of national radio licences, but no such rule applies to local radio. That means that the outcome of long and detailed assessment by the Radio Authority to establish which of a number of licence applicants is best able to provide a particular radio service for a particular area could be overturned by a marketplace transaction even before the winner on merit was on air —even, in fact, the day after the Radio Authority's decision had been announced.

§
I am not persuaded by the argument that the type and quality of programme output is safeguarded by the promise of performance that any new buyer would have to inherit, nor are all features of a licence application precisely measurable. I cannot agree with the argument that ownership makes no difference at all.

§
The absence of a moratorium could enable a failed applicant, or indeed someone who had made no application at all, to buy or buy back into access to the airwaves. What is less likely, but still a possibility, is that it could encourage a cottage industry to develop whereby licences are sold on by experienced and plausible licence application writers who have never had any intention to broadcast at all. That has happened across the Atlantic. In both cases, neither the validity of the process nor the credibility of the
779
regulator is best served. I therefore urge noble Lords to support the amendments in my name which seek to apply the same moratorium on takeovers to local radio that applies to its national counterpart.

§
My noble friend will have noticed that I have omitted a section dealing with "associated programme providers" which was in Clause 102. I did so because I do not believe that that term is relevant to radio. I believe that it was mistakenly carried across from the moratorium amendments for Channels 3 and 5.

§
I must make quite clear that the moratorium will not apply where existing franchise holders take up their new licences under the transitional arrangements. Nor will it apply to existing licence holders being granted a renewal, whether or not it is the subject of a competitive reapplication. This amendment comes directly from the IBA. I beg to move.

Earl Ferrers

My Lords, I have listened carefully to what my noble friend said. I do not deny that there is some force in his argument. I know that, as he said, the Radio Authority favours this amendment. We looked at this matter in some detail when deciding to extend the moratorium to national radio. We concluded that the situation for local radio was different and that a moratorium would not be right.

Perhaps I could explain the distinction. First, noble Lords will be aware that there will be only three national radio licences. The shadow Radio Authority's recent letter-of-intent exercise revealed that there could be more than 20 applications for each licence. So it is perfectly conceivable that some may see ad vantage in staying out of the tender process until the licence has been awarded. The case of local radio is different. Several hundred licences will be on offer over the next few years, and more than one licence could be offered in some areas.

Secondly, I understand that the moratorium proposed in this amendment would apply to all the existing independent local radio stations, which will be able to obtain licences from the Radio Authority under the transitional arrangements without facing any competition. At present they are subject to takeovers—to the extent that the IBA permits—and a moratorium would be a windfall protection for them.

Thirdly, the licensing of local radio services will be a gradual process over a number of years, with licences being readvertised, in the normal course, every eight years. Also, there will be more frequencies coming in later in the 1990s. If my noble friend's amendment were to be accepted, there would therefore be a rolling set of moratoria extending indefinitely into the future. That prospect is very much at variance with the Government's general philosophy of encouraging commercial disciplines.

Fourthly, there will be a much wider range of programme choice available to listeners at the local level; and they will be likely to support the service which most appeals to them in terms of character and content. I question whether listeners will be unduly concerned about who provides the service so long as it continues to provide the programmes they want to hear and which were promised in the application. The
780
requirement for new licence holders to observe the promise of performance which is given by their predecessors should be a powerful safeguard in this respect.

For that reason, I hope that my noble friend will understand why I cannot advise your Lordships to accept this amendment.

My Lords, I was under the impression that my amendment did not apply to existing franchise holders or existing licence holders who were being granted renewal. However, I shall read with great care what my noble friend the Minister said. At this stage I beg leave to withdraw the amendment.

§Lord Bonham-Carter moved Amendment No. 259:
Page 89, line 46, at end insert:("(8) Where the Authority have awarded a local licence to any person in accordance with this section and section 104 they shall, as soon as reasonably practicable after awarding the licence, publish—

(a) the Authority's reasons for the licence having been so awarded; and

(b) such other information as the Authority consider appropriate".).

§
The noble Lord said: My Lords, this amendment, which stands in my name and the name of the noble Baroness, Lady Ewart-Biggs, is about openness. It seems desirable that bodies with regulatory functions assigned to them by Acts of Parliament should, where possible, conduct their business as openly as possible and make the reasons for their actions known as widely as possible.

§
In Committee I moved an amendment which proposed that the Radio Authority should publish in detail its reasons for an award or for refusing the award of a local licence. The noble Earl, Lord Ferrers, said that he was unwilling to concede the amendment, although he found it attractive, because he did not wish to burden the authority with the obligation of setting out its reasons to every applicant in respect of several hundred licences.

§
In order to relieve the authority of that burden I then proposed that it might be easier if the authority explained its reasons when it granted a licence. First, I believed that, as I said, public authorities should conduct their affairs as openly as possible; secondly, this provides people who are thinking about applying with evidence of the kind of criteria that the authority applies when granting licences. A policy is therefore produced by means of a series of precedents which in the public interest should be made known.

§
The amendment tabled today once more puts forward that proposal. It does not require the authority to write letters to hundreds of people. It merely asks the authority to write one letter to the successful applicant and to publish that letter. Publishing the letter will compose the kind of
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historical record and picture of the criteria by which the licences are provided. I do not believe that it will put any unnecessary burden on the authority.

§
Given the fact that the noble Earl, Lord Ferrers, greeted my original proposal in a fairly positive fashion, I hope that he will be able to accept this amendment. I beg to move.

My Lords, for the reasons that he has given, I should like to support the remarks made by the noble Lord, Lord Bonham-Carter, when he moved this amendment. I too would like to remind the Minister that he admitted that he found attractive the original amendment moved in Committee although he offered practical reasons for not being able to accept it. We have removed the problems and difficulties to which the Minister pointed at Committee stage and I hope therefore that he will regard the amendment in a more positive way.

I should like to add to what the noble Lord, Lord Bonham-Carter, said about openness. Surely it is true that we are now moving, if perhaps rather slowly, in the direction of a new philosophy, finding it more normal that information regarding certain people should be passed to them. That is not now thought to be completely unthinkable in such a big way. We are moving in that direction.

This amendment is in the same spirit. There is no reason for withholding the information and there are reasons for giving it. As the noble Lord said, there is the practical reason that it would give unsuccessful applicants the necessary information against which to compare their own application. I am sure that that is useful.

The Minister's reservations concern difficulties which are no longer part of this amendment. I also remind him that the authority is under a parallel duty to publish its decisions when awarding a national licence but only when it is to an applicant other than the one who has submitted the highest bid. If the Minister accepts this redrafted amendment, it will be a significant extension of public accountability over the decisions of the Radio Authority.

My Lords, it would be asking for trouble to try to implement the provision. It is one thing to have a decision as to whether or not one will have an award. One accepts that that is the referee's decision. But if he has to give reasons, those reasons may cause hackles to rise. It is not a practical proposition; it is a theoretical one which has certain attractions. But one cannot ask the people who give the award to detail reasons without those who have had the award turned down quarrelling about the reasons.

Earl Ferrers

My Lords, the noble Lord, Lord Bonham-Carter, returns to the matter of openness over licences. He said that I found the previous amendment attractive and he has ingeniously altered this amendment. The noble Baroness, Lady Ewart-Biggs, hoped that I would consider the matter in a more positive way. I can assure her that I always look
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at amendments in a positive way. It is simply that regrettably I cannot always come to the same conclusion as those who propose the amendment.

I undertook to consider the matter further. I have done so. I have also consulted the shadow Radio Authority for its views. It re-emphasised the argument that I raised in Committee that a duty to publish the reasons for awarding a licence to an applicant—and therefore by implication the reason it did not award licences to other applicants—would add considerably to its costs and therefore impose an extra burden upon its licensees. It also pointed out that any reasons that it gave would have to take account of the possibility of judicial review. I also referred in Committee to the likelihood that an obligation on the authority to give reasons in every case would slow down the licensing process.

There are also some other considerations. Clause 104 sets out the criteria of which the authority will take account when considering local licence applications. Under Clause 103(4) the authority must make an applicant's proposals available for public scrutiny on request. As a result, it will be open to applicants, once a licensing decision has been reached, to look at their competitors' applications in the knowledge of the criteria being held by the authority. They will therefore be able to see for themselves why the authority decided in favour of the successful applicant and against the unsuccessful applicants. It is unlikely that the Radio Authority will be able to add anything very useful in explanation. Certainly the authority would not wish to say anything, in giving reasons to an unsuccessful applicant, which might damage that applicant's reputation or willingness to try again in a later competition. In any close contest the decision will be a matter for the authority's judgment and the losers will have to accept that the authority decided that their applications did not fit the licensing criteria quite as well as that of the winner.

We have tried to make the process as open and objective as possible. However, in the final analysis there will be decisions for the authority to take against known statutory licensing criteria. Any reasons that they were obliged to give for preferring one application to another would not necessarily add much to the conclusions which an applicant would be able to draw for himself.

That does not mean that the authority would refuse to try to give an explanation in individual cases if an applicant requested it. If there were an obvious deficiency in an application the authority would I am sure be ready to point it out to an applicant who wanted the information.

The Radio Authority will license several hundred new radio stations. In addition, it will issue many licences to restricted services and other such broadcasters where no competitive process will be involved. I believe that it would add considerably, and in my view unnecessarily, to its burden to have to give reasons in every case.

My Lords, I thank the noble Earl for that reply. I find it deeply disappointing and
783
somewhat unconvincing. It appears that when he considers a proposal carefully he comes to a negative conclusion with considerable regularity. He tells me that he cannot accept the amendment because it would add to the cost and work of the Radio Authority, and might provoke judicial review. However, he states that the authority would not refuse to give an explanation if asked.

He referred to certain difficulties with regard to unsuccessful applicants. I begin with that. We are not talking about unsuccessful applicants. The amendment omits reference to the unsuccessful applicants. I agree that there was such reference in the amendment at Committee. However, in this amendment it has been removed altogether. I therefore cannot understand what trouble would be incurred regarding the unsuccessful applicant.

If the Radio Authority is not unwilling to give an explanation to those who ask, I cannot understand why it should not give an explanation to those who succeed. The idea that one will have a judicial review of a successful application seems to me extremely remote. One can have judicial review of an unsuccessful application. The noble Earl wishes to ask me something.

Earl Ferrers

My Lords, I became a little agitated. Perhaps I may interrupt the noble Lord with the leave of the House. He referred to an applicant who can go to the Radio Authority and ask why a successful applicant obtained the licence. The inference is that he asks why he did not obtain it. The noble Lord says that he is not talking about those who are unsuccessful. But it will be those who are unsuccessful who will be inquiring why they are not successful. One cannot make that distinction and pretend that unsuccessful applicants do not come into it. If the noble Lord wishes the Radio Authority to give the reason why the successful applicant was successful, it could simply state that it was because he was the best applicant. That would add nothing.

My Lords, it is correct to say that could, but it would be deeply unsatisfactory. The objective is to provide the public with criteria upon which the Radio Authority was providing licences. I cannot see that such provision would add much to its work or costs or would incite judicial review. That is all that I suggest.

However, for reasons that I find difficult to follow, the noble Earl has rejected the amendment. I regret that. It is a pity. I beg leave to withdraw the amendment.

§
The noble Lord said: My Lords, it is the last of the three amendments that I move on behalf of the IBA and the shadow Radio Authority. There is a requirement in the Bill which I believe needs further consideration. It is called the viability test for local licences. Clause 104 paragraph (a) requires the Radio
784
Authority, before granting a local licence, to have regard to the ability of the applicant to maintain the service for the full term of the licence. That would probably amount to eight years.

§
I submit that that imposes an undue burden on the licence applicants and the Radio Authority. The viability of licence holders will depend on a number of variables which it is unrealistic to expect either the applicant or the regulator to predict with any useful degree of accuracy over such a time span. Applicants themselves could argue with some validity that many of the detailed projections they might be asked to provide were dependent on events resulting from subsequent Radio Authority decision-making—for example, the rate at which and the areas in which the Radio Authority offered new licences. I might add that no such long distance crystal ball gazing is required by the present broadcasting legislation. I am not aware that the IBA has found that a problem.

§
I submit that we should leave it to the regulator to decide how far it and licence applicants realistically should have to look ahead in considering the latter's viability. I therefore urge the Government to delete the requirement to consider viability across the full eight-year term of the licence. I beg to move.

Earl Ferrers

My Lords, I know that the shadow Radio Authority fears that its duty to examine the likely viability of the applicants' plans will be an onerous task. But I believe that it need not be so. There is no reason for them to scrutinise an applicant's budget in fine detail using financial forecasts, computer predictions or any other elaborate forms of economic modelling. All that the Bill requires in that respect is that the authority should have regard to an applicant's ability to maintain his proposed service for the length of his licence on the basis of the information that the applicant has provided. In other words, it has to look at the applicant's financial position and consider whether his future projections look reasonable. This should not be a great burden. But it has one of the key aspects mentioned in the Green Paper for the authority's role in selecting licensees. I believe it would be unwise to dispense with it. It is surely the right policy for account to be taken at the licensing stage of whether the proposal looks viable and sustainable. If the application is clearly financially unsound it is surely right that it should be weeded out. That means that the Radio Authority will have to sift out the obvious duds.

Perhaps it would help my noble friend if I differentiate between sifting out the duds and the case of an applicant who subsequently finds the going harder than he had expected and has to surrender his licence before it expires. No one is asking the shadow Radio Authority for some kind of certificate of viability, nor is it suggested that it would be in breach of its responsibilities if the applicant subsequently failed.

It is a proper part of the authority's licensing procedures to assess an applicant's likely ability to bring his proposed service on air and to continue then to provide that service for the period of his licence. We
785
believe the authority should be able to devise a sensible light-touch and uncomplicated approach to the task.

My Lords, although I am improving rapidly I do not pretend to be an expert on the subject. I am grateful for what my noble friend has said. I should like to put his comments before the shadow Radio Authority for its further advice and in the meantime beg leave to withdraw the amendment.

§Earl Ferrers moved Amendment No. 260:
Page 90, line 18, after ("provided") insert (", and, in particular, the extent to which the service would cater for tastes and interests different from those already catered for by local services provided for that area or locality;").

§
The noble Earl said: My Lords, I shall speak also to Amendment No. 261. During Committee I gave my noble friend Lord Colwyn an undertaking to consider amending this clause so as to reinforce the expectation that the authority should favour applicants who seek to do more than replicate existing services. Clause 104(c) already refers to a broadening of the range of programmes and Clause 84 gives the authority a general duty to secure a range and diversity of local services. I agree with my noble friend that an element is still missing which this amendment aims to correct. The amendment requires the authority to take account of the extent to which an application would serve tastes and interests different from those served by the local services already available in the area. I hope that my noble friend will agree that, with this amendment, the Bill will give a fuller and more complete effect to the policy intention that there should be a genuine diversity of local radio services in an expanding independent radio sector. I am sure that the authority will be guided by this aim in carrying out its licensing task. I beg to move.

(b) that it would not substantially alter the character of the service.").

§
The noble Earl said: My Lords, as it stands Clause 105 would permit the authority to consent to a departure from the proposed service only on the
786
ground that this would not narrow the range of programmes available by way of independent radio services to persons living in the area or locality. The shadow authority has made the point to us that this is in effect would mean that it could consent to a licensee's dropping particular kinds of programmes only if satisfied that those programmes were being provided in the same area by another licensee. That is too restrictive. Particular types of programmes may become unpopular or otherwise go out of fashion. The amendment would accordingly allow such developments in programming but only if the authority were satisfied that the character of the service would not be substantially altered. The amendment therefore preserves the principle that stations must live up to the general thrust of the programming promises which they have made. I beg to move.

§Lord Bonham-Carter moved Amendment No. 265:
Page 90, line 31, leave out from ("serves") to end of line 33 and insert ("the area, locality or community for which it is licensed to be provided.").

§
The noble Lord said: My Lords, the amendment relates to what appear to be contradictions in government policy. On the one hand the Government appear to be committed to an expansion of local services in a particular area but on the other they do not believe that the market will support the new services after the privatisation of the transmission service. Hence, it is the desire of the Government to allow the Radio Authority to sanction a service which provides for only part of the area.

§
We are worried about the situation because, for example, a franchise may be awarded to a semi-rural area with a town in the middle. It may be that the applicant finds that it is more economical to serve the town and not the rural area surrounding it. Therefore, the town will receive the service and the rural area will never be served with the facilities of the radio station. The company applying knows that it will not be forced to live up to the franchise conditions. Is that situation a possibility? If so what steps can be taken to stop companies behaving in such a way as a regular tactic? I beg to move.

My Lords, the noble Lord has pointed out a relevant issue and I should like to hear the Minister's reply. There could be a problem as regards coverage and it may be that the provision needs strengthening rather than leaving as it is. There would be a weakening of the whole system.

Earl Ferrers

My Lords, the noble Lord has led me into mild confusion because I had thought that the amendment was dealt with when speaking to Amendment No. 245. We must bear in mind that it is impossible to provide a complete and total coverage by local and independent radio services because the transmitters do not exist. If they are to be built or if an imposition is to be put on the Radio Authority to guarantee a large coverage of various areas the services will never get off the ground. We must try to allow them to do so with the facilities that already exist. Gradually the transmitting facilities will increase
787
and expand as will the number of people covered. It is difficult to put a particular form of instruction or onus on a licensee to cover a specific area. Of course, initially a number of areas in the country will be prejudiced because no transmitters are in place. Howeser, I suspect that in time that will be overcome.

§
The noble Earl said: I beg to move Amendment No. 266 and would like to speak to Amendments 267 and 268. These amendments address some concerns which were raised by the noble Lord, Lord Bonham-Carter, in Committee. I am sure he will be glad to know that they have been addressed with a constructive and positive attitude, as the noble Baroness, Lady Ewart-Biggs, would say.

§
Clause 105(4) was included in the Bill in order to deal with awkwardness which arose under the Broadcasting Bill 1981. A number of communities around the country were deprived of satisfactory independent radio reception which they might otherwise have been able to have because the IBA was unable to amend contracts so as to allow stations to cater for such communities without readvertising the whole contract. It is intended that the Radio Authority should not face the same difficulty.

§
Nevertheless, the noble Lord, Lord Bonham-Carter, quite properly drew our attention to the fact that Clause 105(4), as it stands, would, in principle at least, permit large extensions of local radio coverage areas. The objection to that is that it might in such circumstances be better and fairer to advertise a separate, new licence for which any eligible group could apply. I am sure that the Radio Authority would not in practice have authorised large extensions in circumstances where it would have been better to have an extra station. But we agree that the clause should be tightened up, although not in a way which takes us back to the undesirable restrictions in the 1981 Act. These amendments accordingly require; first, that any additional area must adjoin the existing licence area; secondly, that it must not amount to a substantial increase in the licence area; and, thirdly, that the e authority must publish a notice giving details of the new area which it has included in the licence.

§
I should emphasise that it will remain the authority's primary goal to license each area individually. But it should be open to it to allow minor extensions of coverage areas. Where, for instance, reception could be improved for a station's existing listeners or perhaps the additional area could not support its own service, that should be done.

§
I am grateful to the noble Lord, Lord Bonham-Carter, for bringing this matter to our notice and I trust that these amendments satisfactorily answer his concern and go some way to answering the other concerns that he has also expressed. I beg to move.

§Earl Ferrers moved Amendments Nos. 267 and 268:
Page 90, line 42, leave out ("falling outside") and insert ("adjoining").Page 90, line 44, at end insert:("(5) The Authority shall only exercise the power conferred on them by subsection (4) if it appears to them that to do so would not result in a substantial increase in the area or locality for which the service in question is licensed to be provided.(6) As soon as practicable after the Authority have exercised that power in relation to any service, they shall publish, in such manner as they consider appropriate, a notice—

(a) stating that they have exercised that power in relation to that service; and

(b) giving details of the additional area or locality for which that service is licensed to be provided.").

§Earl Ferrers moved Amendment No. 269:
Page 95, line 5, at end insert:("(3A) It is hereby also declared that where

(a) any service constitutes such a service as is mentioned in subsection (1), and

(b) the sound programmes in respect of which the service is provided are provided for transmission in the course of the provision of any additional service,

that service is licensable under section 112 as a licensable programme service, and not otherwise; and in this subsection "additional service" means an additional service within the meaning of this Part or Part I.").

§
The noble Earl said: My Lords, I beg to move Amendment No. 269. This amendment was debated earlier, along with Amendments Nos. 270 to 277, when we dealt with Amendments Nos. 11, 52, 54, 142, 146 and 184.

My Lords, is the noble Earl proud of the word "licensable"? If a service being licensable means that the service qualifies for a licence, why not say so? Brevity is not everything. We have inherited a statute book expressed in elegant language on the whole, and I make a plea for keeping out of the statutes hideous words such as that.

Earl Ferrers

My Lords, I am immensely proud of the word "licensable". As the noble Lord, Lord Airedale, said, it is very much shorter than the words he suggested and, if I may say so, it is much more explicit than the words he suggested in his earlier amendment.

§Earl Ferrers moved Amendment No. 270:
Page 95, line 26, leave out ("telecommunication service which is provided") and insert ("service which consists in the sending of telecommunication signals for transmission").

§
Clause 121 [Certain receipts of Authority to be paid into Consolidated Fund]:

§Earl Ferrers moved Amendment No. 276:
Page 101, line 37, at end insert:("(5) The Authority shall, in respect of each financial year, prepare an account showing—

(a) all such amounts falling within subsection (1) as have been received by them, and

(b) the sums paid into the Consolidated Funds of the united Kingdom and Northern Ireland respectively under that subsection in respect of those amounts,

and shall send that account to the Comptroller and Auditor General not later than the end of the month of November following the financial year to which it relates; and the Comptroller and Auditor General shall examine, certify and report on the account and lay copies of it, together with his report, before each House of Parliament.").

§Earl Ferrers moved Amendment No. 278:
Page 103, line 38, at end insert:("(4A) If requested to do so by the chairman appointed under subsection (4) (a), the Commission shall furnish the IBA with any assistance required by them for the purpose of carrying out any of those functions.").

§
The noble Earl said: My Lords, this is almost a technical amendment. I also speak to Amendment No. 282.

§
The purpose of these amendments is to ensure that the residual IBA and Cable Authority, provided for in Clauses 126 and 127, will have sufficient support to carry out any remaining functions which may be left to them after their main functions have been transferred under Schedules 7 and 8 of the Bill. Provision for a residual body—where immediate allocation of all functions to one or other of the successor bodies may not be possible—is a common feature of privatisation statutes. We do not expect any substantial responsibilities to be vested in the residual authorities but, for various technical reasons, some limited functions will remain with them for a period, for instance the preparation of a final set of accounts. The amendments place a duty on the ITC to provide such staff or other assistance as the chairman of the rump bodies may require for the purpose. It will not be an onerous duty but it is a necessary one. I commend the amendments to your Lordships accordingly. I beg to move.

§Earl Ferrers moved Amendment No. 279:
Page 189, line 11, at end insert C', or with respect to any liabilities of the IBA which—

(a) have not yet become enforceable against the IBA, and

(b) are not specifically and exclusively referable to any particular part or parts of the undertaking of the IBA which is or are transferred in accordance with any such scheme to one or more of the relevant transferees.").

§
The noble Earl said: My Lords, I beg to move Amendment No. 279 and speak to Amendment No. 281. These are technical amendments. They refine the provisions of Schedule 7 in order to make allowance for liabilities which would have fallen to the IBA, but which become known only after the transfer date and which are not plainly attributable to one or other of the successor bodies. An example of what we have in mind might be some future award of damages arising in connection with a former IBA function, but which is not identifiable as either a transmission company or a regulatory activity.

§
Clause 126 already provides for the continued existence of the IBA for a period after the division of its assets by a scheme made under Schedule 7. The difficulty is that contingent liabilities such as I have described may not be able to be known before vesting day and they could only be allocated in an arbitrary fashion. What the first amendment does is to enable liabilities which are not clearly attributable either to the ITC or to the transmission company to remain with the residual IBA. We do not expect such liabilities to be substantial. If any could be identified they would have been allocated by the scheme, but it would be wrong to ignore the possibility altogether. The residuary IBA would not have the resources to meet any such liabilities. That is why the second amendment enables such costs to be reimbursed by the
791
Perhaps I may take this opportunity to apologise for the fact that we shall need to introduce a further small refinement in connection with the residuary IBA at Third Reading. It will enable certain existing rights and liabilities in respect of access to IBA and BBC sites and masts to remain with the residuary IBA when the assets themselves are transferred to the transmission company. I regret that it has not proved possible to prepare and table the amendment, which required some detailed technical consideration, at an earlier stage. I beg to move.

§Earl Ferrers moved Amendment No. 280:
Page 192, line 47, at end insert:

§
("Power of Secretary of State to control division of IBA's pension fund8A.—(1) If the Secretary of State so determines, the trustees of the Independent Broadcasting Authority Staff Pensions Plan shall refer to him, before such date as he may specify, the division and distribution of the relevant assets which is to be made by them for the purpose of making a transfer payment to a pension scheme established by the nominated company for its employees; and, if he does so, any such division and distribution of those assets and liabilities shall not be made by the trustees except—

(a) with his consent, or

(b) in accordance with an order made by him under sub-paragraph (2).

(2) Where any such division and distribution is referred to the Secretary of State under sub-paragraph (1), he may by order direct that the relevant assets shall be divided and distributed by the trustees in such manner, and at such time, as is specified in the order.

"the relevant assets" means the assets held by or on behalf of the trustees; and

"the trustees" means the trustees of the Plan referred to in sub-paragraph (1).

(4) An order under sub-paragraph (2) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

§
The noble Earl said: My Lords, I beg to move Amendment No. 280 and to deal with Amendments Nos. 280A and 280B at the same time.

§
The government amendment builds on the Schedule 7 powers in respect of the division of the IBA's assets and liabilities to include an additional reserve power in relation to the division of the IBA staff pension plan. Because the pension fund does not belong to the IBA—it is in fact held by a body of trustees who are nominated by the IBA—it is not an asset which can be transferred by a scheme made under paragraph 2 of Schedule 7.

§
This amendment seeks essentially to do two things. First, new paragraph 8A(1) enables the Secretary of State, if necessary, to require the trustees of the IBA scheme to refer to him their proposals for apportioning the fund on the dissolution of the IBA. Secondly, if the Secretary of State requires that, subparagraph (1) also places a duty on the trustees to apportion the pension scheme's assets in accordance with an order made by him under paragraph 8A(2). Paragraph 8A(4) makes any such order subject to the negative resolution procedure.

§
We are bringing forward this amendment very much as a long-stop provision. Our discussions with the IBA about the division of the scheme have been thorough and constructive.

§
I should emphasise that we have no intention of activating the provision unless for some reason it proves impossible otherwise to secure the equitable division of the pension fund which all parties desire. The trustees do not foresee any difficulties revising the terms of the scheme and allocating the fund equitably between those past and present IBA employees remaining with the existing scheme and those transferring to the transmission company and its new scheme. The purpose of the reserve power is simply to put it beyond doubt that the Government's undertakings about the preservation of the pension rights of all current IBA employees and pensioners on the dissolution of the IBA can be fulfilled. A reserve power along those lines has become a standard feature of privatisation statutes. In the unlikely event of the Government needing to invoke the power to modify the proposed division of the pension scheme, it would be subject to parliamentary approval. I beg to move.

§
The Government have tabled an amendment to Schedule 7 giving the Secretary of State powers to intervene in the transfer value to be paid to the IBA scheme for the new transmission company scheme. That caused a certain amount of distress and concern, both on the part of the IBA and on the part of many noble Lords who are concerned about the matter.

§
Although we do not think that the Secretary of State should take such powers at all, the Government clearly appear determined to do so. We have therefore suggested that the amendment could be improved in two respects; first, to ensure that the Secretary of State has regard to the interests of all the scheme members and beneficiaries; and, secondly, to ensure that, if the Secretary of State intervenes, the trustees are not left liable to the scheme members and beneficiaries if the decision of the Secretary of State is different, as it no doubt would be, from that that the trustees would have made.

§
The Home Office has accepted that the amendment could be further amended and parliamentary counsel are drafting two amendments. As I understand it, Amendments Nos. 280A and 280B have the blessing of the Home Office.

§
To put matters on the record, the IBA staff pension plan has some 1,200 contributing members, 450 pensioners and 650 former staff with preserved rights in the scheme. The Welsh Fourth Channel Authority is a participating employer in the scheme. With the abolition of the IBA and the creation of three successor bodies—the ITC, the Radio Authority and the privatised transmission company—it was necessary to determine the future of the IBA staff pension plan.

§
In order to provide continuity of pension rights and benefits and to protect the position of plan beneficiaries, it has been decided that a new pension scheme should be established for the transmission company. That scheme will be a mirror image of the IBA scheme and IBA staff transferring to employment with the company will be able to transfer their IBA pensionable service to the new company scheme which will have the same benefit structure as the IBA scheme.

§
As we all know, the ITC will replace the IBA as the principal employer of the IBA scheme and continuity of pension arrangements will also therefore be preserved for IBA staff who become employed by the ITC. The Radio Authority has indicated that it wishes to become a participating employer in the IBA/ITC scheme, thus preserving continuity of pension arrangements for IBA staff who are employed by the Radio Authority.

§
In order to preserve continuity for pensioners and preserved pensioners, it was decided that existing pensioners would continue to belong to the IBA/ITC scheme. I am sure that I am among a number of noble Lords who have received letters expressing great concern from IBA pensioners and widows of pensioners who are worried that their pensions will be affected by that change. Although I have written in the interim to try to reassure them, it will help greatly once this matter is on the statute book and made clear to them.

§
The effect of the changes will be that the ITC scheme will have some 300 contributing members, some 600 pensioners and some 750 preserved pensioners. The transmission company scheme will have some 800 contributing members, but no pensioners in the initial years.

§
The trustees of the IBA staff pension plan will need to determine a transfer value to be paid to the newly established transmission company scheme representing the value of the pension benefits accrued by IBA staff transferring to the transmission company. The trustees, who are under a duty to have regard to the interests of all scheme members, will aim to ensure when determining the transfer value to be paid to the transmission company scheme that the IBA's successor bodies will have pension arrangements and funding broadly similar to that which exists in the IBA scheme.

§
The Government have tabled an amendment to the Broadcasting Bill giving the Secretary of State power to intervene in the determination of the transfer value to be paid to the transmission company scheme.
794
Neither the trustees of the IBA staff pension plan nor the IBA believes that it is desirable or necessary for the Government to take such powers. The trustees are bound in law to have regard to the interests of all the scheme members and legal remedies are available in situations where trustees fail in that duty.

§
Having said that—I apologise for having spoken at some length, but it is important that the points should be fully reported in Hansard—I should like to put three questions to the Minister. Will he give an assurance that the real value of increases in the benefits paid to IBA pensioners will continue after the abolition of the IBA? Does he share the concern of IBA pensioners about the reduction in the number of contributing members to the new ITC pension scheme? If so, how do the Government intend to ensure that the rights and benefits of IBA pensioners are protected? Will he indicate whether the Government intend to privatise the transmission services of the IBA by trade sale or public flotation and, if that decision has not been taken, whether Parliament will be able to scrutinise the form of sale before it occurs? There is another question which I have not asked the Minister because I asked him in Committee and received a letter from him.

§
I am sorry to ask the questions at this late stage, but the amendments appeared only recently on the Marshalled List. I should be grateful if the Minister would clarify those points on this technical and difficult matter.

My Lords, these are important matters to the people concerned. I am sure that the noble Baroness, Lady Birk, is right to raise those issues and to ask my noble friend to clarify the position.

There are only two points that I wish to put to my noble friend. First, will he give an assurance that it is intended that existing pension rights will be fully maintained, notwithstanding the different structure of the scheme and particularly the different relationship, as I understand it, between the number of contributors and the number of beneficiaries? Secondly, can the Minister say whether the European decision about having the same age for members of pension schemes of both sexes is to be applied, or what the situation is in that regard?

Perhaps my noble friend will deal with those matters as well as the other important matters put to him by the noble Baroness.

Earl Ferrers

My Lords, the noble Baroness and my noble friend raised some important points. I accept, as the noble Baroness said, that the IBA does not believe the provision to be necessary and would prefer not to see it added to the Bill. As I said earlier, it is well precedented in other privatisation statutes, including the Airports Act 1986, the Water Act 1989 and the Electricity Act 1989. We have been careful to circumscribe the provision and there is nothing sinister about it. Its purpose is simply to ensure that we are in a position to honour our public undertakings.

795
That is the first answer I give to my noble friend Lord Boyd-Carpenter. We said all along that those involved in the Independent Broadcasting Authority should have their pensions honoured in the future. That is the reason for the legislation. I assure the noble Baroness that we shall be as reluctant to use the provision as the IBA will be reluctant to see us use it. It is only for a long stop position.

I am grateful to the noble Baroness for tabling Amendments Nos. 280A and 280B to my amendment. The first one will ensure that, should it be necessary to make an order, the trustees will be discharged from their existing liabilities where these may conflict with the order. That is an eminently sensible provision. Amendment No. 280B places an additional duty on the Secretary of State, in making an order under paragraph 2, to have regard to the interests of all the pension scheme's present and future beneficiaries. As I explained, that accords precisely with the Government's intention. We welcome the opportunity to confirm that fact. I am therefore pleased to accept both the amendments of the noble Baroness.

The noble Baroness also referred to pension rights. I understand from the IBA that its pension scheme guarantees index linking for inflation up to 5 per cent. It gives the IBA discretion to index link above that figure. I also understand that in practice the IBA has given its pensioners full index linking, although those pensioners have no automatic right to such an additional payment, and that is important.

We made it clear that the pension rights of current IBA employees will be preserved on the dissolution of the IBA. The payment of pension benefits over and above those rights will be at the discretion of the successor bodies in the same way as it is for the IBA at present. Ministers cannot commit the ITC or future owners of the company to exercise their discretion in any specific way.

The noble Baroness asked about the sale of the transmission companies. No final decision on the method of sale has yet been taken. That will be determined in the first half of next year, but a flotation appears to be most unlikely.

My noble friend Lord Boyd-Carpenter asked about the recent European decision. I understand that the IBA pension scheme already complies fully with that decision. I hope that I have answered the queries raised. As I said, I am content to recommend that the amendments of the noble Baroness be accepted.

My Lords, before the noble Earl sits down perhaps I could ask a question. I may have been stupid in listening to him and should like to understand his position. Is it a right to have the pension indexed to 5 per cent. or is that at the discretion of the company? The noble Earl said that the company had always done that. It is a very important point. I take it that it is 5 per cent. or the level of the RPI, whichever is the less. That is usually the case. What is the right of which they are assured as distinct to what they may be lucky to get if the company is in a good mood?

My Lords, I do not believe the noble Baroness is wrong to intervene if she does not understand what I said. It is an important point. She is correct that the rights include the 5 per cent. or less, whatever the RPI may be. That is the right that continues. The benefit is anything above 5 per cent.; that is discretionary. It is discretionary at present, and such discretion will move over to those people operating in the future. The right of up to 5 per cent. will be a right which continues.

My Lords, I find myself in a difficult situation. One further question has arisen on the points I made. What may sound extremely strange, what has never happened before and what may never happen again is that if the noble Lord, Lord Boyd-Carpenter, is satisfied with the answers given by the Minister, I too may be satisfied. The noble Lord is much more a specialist on pensions than I and this is not a party political matter.

I should like to know whether Parliament will be able to scrutinise the form of sale of the IBA transmission. It is an extremely important point. The Minister said that it would be either by trade sale or public flotation. When I asked the question he said that he thought it would be by public flotation. I believe I asked—if I did not I meant to—whether Parliament would be able to scrutinise the form of sale before it occurred.

Earl Ferrers

My Lords, with the leave of the House perhaps I may make a further intervention. It is correct that the sale of the transmission will not require parliamentary approval, though Ministers may like to inform Parliament regarding the way the sale is proposed.

My Lords, we are speaking of public bodies and Parliament should certainly be informed. I am sure that the other place would feel the same way. The point has not been put before them because it has just entered this debate. It will be contained in the Lords' amendments that go back to the Commons. I should like to feel that we shall receive an affirmative answer. Perhaps the Minister will note my comments.

§Baroness Birk moved, as an amendment to Amendment No. 280, Amendment No. 280B:
Line 17, at end insert:("(2A) When making an order under sub-paragraph (2) the Secretary of State shall have regard to the interests of all classes of persons who are for the time being beneficiaries or potential beneficiaries under the plan referred to in sub-paragraph (1).").

§
8B.—(1) This paragraph applies to any liabilities to which the IBA are subject on or after the transfer date, being liabilities which—

(a) had not become enforceable against the IBA before that date, and

(b) are not specifically and exclusively referable to any particular part or parts of the undertaking of the IBA which has or have been transferred in accordance with a transfer scheme to one or more of the relevant transferees.

§
(2) Any sums required by the IBA for the purpose of discharging any liabilities to which this paragraph applies shall be paid to them by the Secretary of State out of money provided by Parliament.

§
(3) Any payments made to the IBA under sub-paragraph (2) may be so made subject to such conditions as the Secretary of State may determine with the approval of the Treasury.").

§
The noble Earl said: My Lords, in moving Amendment No. 281 I shall speak also to Amendment No. 282. These amendments were spoken to with Amendments Nos. 278 and 279. I beg to move.

§
Clause 127 [Vesting in Commission of assets of Cable Authority and dissolution of Authority]:

§Earl Ferrers moved Amendment No. 282:
Page 104, line 11, at end insert:("(3A) If requested to do so by the chairman appointed under subsection (3) (a), the Commission shall furnish the Cable Authority with any assistance required by them for the purpose of carrying out any of those functions.").

(b) in the case of the programmes broadcast on S4C, in pursuance of such a contract made between the nominated company and the Welsh Authority as is mentioned in subsection (5A).").

Page 105, line 7, after ("(3)") insert ("(a)").Page 105, line 24, at end insert:("(5A) The contract referred to in subsection (3) (b) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on S4C during that period, and in particular makes provision for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company.").Page 105, line 38, after ("subsections") insert ("or subsection (5A)").Page 106, line 12, at end insert (", but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales").Page 106, line 14, at end insert:(" "on S4C" has the same meaning as in Part I of this Act.").Page 106. line 15, after ("(4)") insert ("or (5A)").798

§
The noble Earl said: My Lords, I speak also to Amendment No. 292. These are technical amendments which clarify the arrangements for the transition of Channel 4 and S4C during 1991. I beg to move.

§Earl Ferrers moved Amendment No. 292:
Page 195, line 17, at end insert (", but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales, and "on Channel 4" means in the said service;").

§Earl Ferrers moved Amendment No. 293:
Page 196, line 34, at end insert:("(6A) Section 9 of the 1981 Act shall have effect in accordance with sub-paragraph (3) above as if—

(a) in subsection (1) (a), after "standards and practice in advertising" there were inserted "and in the sponsoring of programmes";

(b) in subsection (1) (b), there were inserted at the end "and as regards the sponsoring of programmes so broadcast"; and

(c) after "methods of advertising" (wherever occurring) there were inserted "or sponsorship";

and the Commission may give effect to paragraph (a) above by making modifications to the code in force under section 9 immediately before the transfer date.").

§
The noble Earl said: My Lords, in moving this amendment, I speak also to Amendments Nos. 296, 297 and 302. These amendments simply enable the ITC for the interim period until the end of 1992 to extend the advertising code laid down under Section 9 of the 1981 Broadcasting Act also to sponsorship. I beg to move.

§Earl Ferrers moved Amendments Nos. 294 to 300:
Page 197, line 39, at end insert:("(3A) The Commission shall do all that they can to secure that during the interim period no TV programme contractor—

(a) holds any local licence, or

(b) controls any body which holds any such licence, or

(c) is a participant with more than a 20 per cent. interest in a body corporate which holds any such licence,

in a case where the area or locality for which the licensed service is to be provided is to a significant extent the same as the area for which television programmes are to be provided under the TV programme contractor's contract; and paragraph (c) above shall be construed in accordance with Part I of Schedule 2 to this Act.").Page 199, line 25, at end insert:("(5) Where any service provided by a DBS teletext contractor constitutes such a service as is mentioned in section 45(1) of this Act, that service is licensable under section 46 of this Act as a licensable programme service, and not otherwise.").Page 200, line 36, at end insert ("and in relation to the sponsorship of programmes so broadcast").Page 200, line 38, after ("advertisements") insert ("and other programmes").Page 200, line 52, after ("(3)") insert ("and (5)").Page 201, line 43, leave out ("to make a recording") and insert ("in the case").799Page 201, line 45, leave out ("and to retain that recording") and insert ("to retain a recording of that programme").

§Earl Ferrers moved Amendment No. 301:
Page 204, line 5, at end insert ("; and "additional services licence", "domestic satellite licence" and "spare capacity" have the same meaning as in Part I of this Act.").

§
The noble Earl said: My Lords, this is purely a drafting amendment. I beg to move.

§Earl Ferrers moved Amendments Nos. 302 to 305:
Page 206, line 40, at end insert:("(6A) Section 9 of the 1981 Act shall have effect in accordance with sub-paragraph (3) above as if—

a) in subsection (1) (a), after "standards and practice in advertising" there were inserted "and in the sponsoring of programmes";

(b) in subsection (1) (b), there were inserted at the end "and as regards the sponsoring of programmes so broadcast"; and

(c) after "methods of advertising" (wherever occurring) there were inserted "or sponsorship";

and the Authority may give effect to paragraph (a) above by making modifications to the code in force under section 9 immediately before the transfer date.").Page 207, line 50, at end insert:("(4A) The Authority shall do all that they can to secure that, so long as any contract continues in force by virtue of sub-paragraph (1), the programme contractor under the contract neither—

(a) holds any local licence, nor

(b) controls any body which holds any such licence, nor

(c) is a participant with more than a 20 per cent. interest in a body corporate which holds any such licence,

in a case where the area or locality for which the licensed service is to be provided is to a significant extent the same as the locality for which local sound broadcasts are to be provided under the programme contractor's contract; and paragraph (c) above shall be construed in accordance with Part I of Schedule 2 to this Act.").Page 208, line 18, leave out ("to make a recording") and insert ("in the case").Page 208, line 20, leave out ("and to retain that recording") and insert ("to retain a recording of that programme").

§
The noble Earl said: My Lords, these amendments were spoken to previously with Amendments Nos. 17, 99 and 293. I beg to move.

§Earl Ferrers moved Amendments Nos. 306 and 307:
Page 210, line 16, leave out from ("until") to end of line 18 and insert ("31st December 1994.").Page 210, leave out lines 35 to 37.

§
The noble Earl said: My Lords, the first of these amendments is purely technical but the second perhaps needs some explanation. It is the intention in the Bill that the Radio Authority should examine the financial viability of an application for a local licence with a view to considering whether the service is capable of being sustained for the whole period of the licence. That remains the effect of Clause 104(a).

§
The shadow authority has suggested, however, that it would be a meaningless and unnecessary task for it to examine the financial status of the present IBA contractors before converting their contracts to licences under the transitional arrangements. Most of these stations have been broadcasting for a number of years and have managed to continue through difficult periods. There is no reason to suppose that they would not survive for the period of their initial Radio Authority licences. The other stations, which are mostly those introduced during the incremental scheme, have not been operating long enough to make any fresh study of their finances a worthwhile exercise. In the circumstances we agree with the authority that this duty is an unnecessary task at a time when it will have its hands full with other more important matters. I beg to move.

§Earl Ferrers moved Amendment No. 308:
Page 211, line 5, at end insert:("(2) Where any such contract is so terminated but the programme contractor is granted a local licence as from the date of its termination, any agreement—

(a) made before that date between the contractor and any other person, and

(b) framed (whether expressly or by implication) by reference to the contract or to the contractor's status as a programme contractor,

shall (unless it expressly provides otherwise) have effect as from that date with such modifications as are necessary to take account of the replacement of the contract by the licence or of the contractor's new status as the holder of the licence (as the case may require).(3) References in sub-paragraph (2) to an agreement include references—

(a) to an oral agreement, and

(b) to a deed, bond or other instrument.").

§
The noble Earl said: My Lords, in moving this amendment, I speak also to Amendment No. 313. These are technical amendments which are needed to ensure that, where an existing independent local radio contractor or cable operator opts under the transitional arrangements to be licensed under the new regime, existing agreements and obligations with third parties remain in force. I beg to move.

§
Clause 132 [Functions exercisable by IBA before transfer date in connection with local sound broadcasting]:

§Earl Ferrers moved Amendments Nos. 310 to 312:
Page 109, line 41, leave out ("for and").Page 109, line 41, leave out ("by the nominated company").801Page 109, line 44, at end insert (", which may include provision for the transmission of those programmes by the nominated company.").

§
The noble Earl said: My Lords, these are purely technical amendments which raise no point of substance. I beg to move.

§Earl Ferrers moved Amendment No. 313:
Page 221, line 21, at the end insert:("(2) Where any such licence ("the existing licence") so ceases to have effect but the licence holder is granted in its place a licence ("the new licence") in pursuance of any provision of this Part of this Schedule, any agreement—

(a) made between the licence holder and any other person before the time when the existing licence so ceases to have effect, and

(b) framed (whether expressly or by implication) by reference to the existing licence or to the licence holder's status as the holder of that licence,

shall (unless it expressly provides otherwise) have effect as from that time with such modifications as are necessary to take account of the replacement of the existing licence by the new licence or of the licence holder's new status as the holder of the new licence (as the case may require).(3) References in sub-paragraph (2) to an agreement include references—

(a) to an oral agreement, and

(b) to a deed, bond or other instrument.").

§
The noble Earl said: My Lords, I spoke to this with Amendment No. 308. I beg to move.

(b) in the case of Part I, in consequence of sub-paragraph (2A) (b) below.

(2A) In section 78 of this Act—

(a) subsection (1A) shall apply to the holder of a relevant licence and the service authorised to be provided under such a licence ("a licensed diffusion service") as it applies to the holder of a local delivery licence and his local delivery service; and

(b) subsections (1) and (2) shall apply to a licensed diffusion service as they apply to a licensed local delivery service.

(2B) The holder of a relevant licence shall be taken to be authorised by his licence to include in his licensed diffusion service advertisements which are inserted by him and are not included in any service falling within section 71(2) of this Act; hut, if any such advertisements are so included by him, sections 8 and 9 of this Act shall have effect as if the delivery of those advertisements constituted the provision of a service licensed under Part I of this Act and he were the holder of a licence in force under that Part.(2C) Section 79 of this Act shall apply to the holder of a relevant licence as it applies to the holder of a local delivery licence.").Page 221, line 41, leave out ("provided under the authority of a relevant licence") and insert ("a licensed diffusion service").Page 221, line 42, at end insert:("2.—(1A) It shall be the duty of the Commission to discharge their functions under this Schedule as respects the
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licensing of diffusion services in the manner in which they consider is best calculated to ensure fair and effective competition in the provision of such services and services connected with them.").Page 222, line 35, leave out ("5(5)") and insert ("5(4)").Page224, line 30, at end insert ("and").Page 224, line 32, leave out from ("Authority") to end of line 33.Page 225, line 5, at end insert:

§
4A.—(1) In the case of a licence which continues in force by virtue of paragraph 1 in Part 11 of this Schedule, nothing in this Schedule shall be construed as prejudicing the operation of any conditions included in the licence which—

(a) were included in it in pursuance of section 4(5) (a) of the 1984 Act, and

(b) relate to the inclusion of such programmes, or to assisting such organisations, as are mentioned in section 7(2) (f) of that Act.

§Earl Ferrers moved Amendments Nos. 324 and 325:
Page 227, line 47, leave out sub-paragraph (1) and insert:("(1) The BCC may appoint such number of employees as they may determine.(1A) The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the BCC.").Page 228, line 4, at end insert:("(2A) Any determination under sub-paragraph (1), (1A) or (2) shall require the approval of the Secretary of State given with the consent of the Treasury.").

§
The noble Earl said: My Lords, I speak also to Amendments Nos. 329A and 329B. These are mainly technical amendments. They confirm and clarify the Secretary of State's powers to determine, with the consent of the Treasury, the number of staff to be employed by the Broadcasting Complaints Commission and the Broadcasting Standards Council, together with their pay and conditions. I beg to move.

§Earl Ferrers moved Amendments Nos. 329A and 329B:
Page 231, line 11, leave out sub-paragraph (1) and insert:("(1) The Council may appoint such number of employees as they may determine.(1A) The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the Council.").Page 231, line 16, at end insert:("(2A) Any determination under sub-paragraph (1), (1A) or (2) shall require the approval of the Secretary of State given with the consent of the Treasury.").

§
The noble Earl said: My Lords, both these amendments were spoken to with Amendment No. 324. I beg to move.

§
The noble Baroness said: My Lords, this amendment deals with the Broadcasting Standards Council, a subject about which, in Committee, we had a long and lively debate. Most of the views expressed on that occasion were, if I remember correctly, not in favour of the council. The amendment is quite narrow. It seek s to remove a power which we feel the council should not have.

§
The Government claim that the Broadcasting Standards Council was set up in response to public concern about standards of taste and decency. They
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claim at the same time to be bringing a lighter touch to regulation in broadcasting. However, in regard to the Broadcasting Standards Council, the evidence does not bear out either of those claims. There has been no outcry to which the setting up of this body, another quango, should be a response. The lighter touch of regulation should go entirely the opposite way and should prevent the setting up of such a body. We already have the Broadcasting Complaints Commission and it seems more than likely, unfortunately, that we shall have a Broadcasting Standards Council. I have nothing personal against those involved—the chairman, the noble Lord, Lord Rees-Mogg, or the director, Colin Shaw—but they should not be doing this job at all.

§
Perhaps I may refer to the council's remit. Like the Broadcasting Complaints Commission, it should be restricted to considering complaints brought by members of the public. As the IBA said in a briefing paper dated 26th February 1990:
It does appear to be giving the BSC an ability to act as informant, policeman, prosecuting counsel, jury and judge".
That is because, under the plans at the moment and as the provision stands in the Bill at this stage, the BSC will have the power to initiate complaints. That is not what it was supposed to be about. Such a power was not proposed when the case was made for setting up the BSC.

§
Like the Broadcasting Complaints Commission, the BSC should be restricted to the consideration of complaints brought by members of the public. The right to initiate complaints will involve the BSC in lengthy and expensive monitoring of programmes as it will have to be able to make judgments on programme standards. The Government's intention was clearly not to give the BSC the previewing powers which they have just taken away from the IBA. However, if the Broadcasting Standards Council is entitled to initiate complaints, it will have to be able to monitor a fair range of programming in the public interest. When it starts on that road it is difficult to see how it will be able to continue without getting the agreement of the Government to allow it to preview as well.

§
The BSC should not be given greater powers than other regulators or the arrogant expectation that its judgment is equal to or better than that of a member of the public. If a programme causes real public concern in relation to standards, a complaint will be made. People take different views about things and some will write in, especially at the beginning when the new body is set up. However, the council has no business to be initiating complaints itself. It is a way of inviting the council to meddle in everyone else's business. We all like to think of ourselves as being highly objective but in many areas of our lives and at different times we take a subjective view. There is nothing wrong with that but it should be recognised. But if the BSC initiates complaints itself and takes a subjective view it may become a dangerous busybody. If we remove subsection (7), the council will still be there in all its glory and with its powers to deal with complaints from the public but at least many of us will feel easier about it. I beg to move.

My Lords, I support the noble Baroness, Lady Birk, in her amendment which does something to clip the wings of this totally redundant body. My views on the existence of the Broadcasting Standards Council are known to the noble Earl. It is an unnecessary censoring group. The provision offends against almost every law of administration that has ever been invented. It disperses responsibility instead of concentrating it. The Government who claimed—and we believed them, although we no longer can—that they would govern broadcasting with a lighter touch have created an array of regulatory authorities the like of which has never been seen before in this country.

To start with we have the law; we have the Home Secretary who introduced the Sinn Fein ban; we have the boards of the ITC and the BBC; we have the Broadcasting Complaints Commission; and now we have the Broadcasting Standards Council. If that is a light touch, what in God's name do the Government think of is a heavy touch? It makes one wonder what else they would superimpose on the broadcasting authorities to ensure that they toed the line. I can tell the House of one regulation which they would impose; indeed, they have already done so. I refer to self-censorship. That is a most dangerous measure to introduce into a journalistic organisation.

I do not know whether noble Lords are aware of what happened to Eric James, who used to present the "Thought for the Day" programme for the BBC. He has resigned because at the time of the Labour Party Conference he proposed to feature on the programme a very distinguished and interesting East End pastor called Groser. He introduced into his discussion on Groser, who was very relevant to the talk as well as to the thought for the day, the spirituality of revolt—this in the present climate of the times which have been brought about by the Government submitting to the pressure of people like the noble Lords, Lord Wyatt of Weeford and Lord Orr-Ewing, not to speak of 10 Downing Street. They have introduced into the broadcasting scene a spirit of self-censorship which I find extremely alarming.

I think that the Broadcasting Standards Council is just one among other elements which is a dangerous addition to the regulatory apparatus overseeing broadcasting in this country. The trouble with the council is that it has no real job because other people are already doing it. Therefore, it is in the process of creating a job for itself. It wanted to preview programmes and I congratulate the Government on stopping it from so doing. However, it now wants to be able to initiate complaints. I do not congratulate the Government on submitting to its desire to do so. Why should the council initiate complaints? People initiate complaints if they have something to complain about.

Therefore, why set up a statutory body composed of an odd assortment of individuals—a fairly classically composed assortment of individuals—who will go around drumming up complaints? It is a totally unnecessary organisation. The best we can do at this
806
stage of the Bill's proceedings is to limit its powers. Therefore, I wholly support the amendment moved by the noble Baroness.

My Lords, I believe that there is some objection in principle to subsection (7) as it now appears in the Bill, although I do not necessarily associate myself with everything that has been said by the noble Lord, Lord Bonham-Carter. To my mind the objection is of a much more general character in that here you have a body which is set up to assume what I imagine to be a more or less quasi-judicial role. When complaints are made, its job is to adjudicate on those matters in a dispassionate way after considering all the evidence, and so on.

When it is said that such a body, if it is so moved, should be entitled to make complaints of its own, it seems to me that you are putting it in a somewhat equivocal position. I say that because what is being said is that the body will be able to turn itself around and become a kind of prosecutor and presumably refer the issue to itself, when it will arbitrate upon it in a totally impartial way.

Therefore, whether this subsection is properly included in the clause is an issue deserving of thought on the part of the Government. That does not necessarily seem to me to involve an attack on the council as such; it goes to the principle of the function of such a council and may well confuse its role in a way which will weaken its force vis-á-vis the public.

My Lords, I hesitate to speak as I am a member of this "worthless body"—thus described by the noble Lord opposite. We make our points not from our own views but from the vast amount of inquiry and research which we carry out among the British public. During the course of these long debates on the Broadcasting Bill I have observed that the people who are the least noticed are the viewers and the listeners.

I have listened to the arguments put forward on behalf of the broadcasters and on behalf of every private and public interest involved, but I have not noticed that those who watch and listen are much regarded. We have spent two years talking to people and making inquiries of them. The point of the exercise is that we believe that over a given period certain opinions emerge from the public which would be worth airing.

I served on the Press Council for six unhappy years. That is indeed a worthless body. In fact we had the same principle; namely, that there were certain issues to do with the press which we would raise. We were ineffective. I am grateful to Her Majesty's Government for the fact that we might in this new dispensation which I share have the possibility of being effective. It seems to me that in many ways the ordinary people of this country have been betrayed by those who handle the media and who, by and large, should be their servants. We are concerned that, if issues emerge from inquiries we make which people have not raised, we should have the right to do so.

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Of course it would be quite easy for us to find our friends and ask them to raise issues. Undoubtedly I could ask several people from my own diocese to write in to the council. Indeed, such people are most agreeable to me and they would certainly do so. However, it is much more honourable that the council should say that it is bothered about a particular programme. We would not go to the stake on this issue; it is not the fundamental point of our lives. However, it seems to me that, having really listened to the people to whom we have talked, who are not simply the producers of programmes but who are also the receivers of them, there comes a time when we should take note of what they say and use it as a means to present before the broadcaster and the British public some of the genuine issues which have come to light. I believe that we are doing our duty and I am sorry that the noble Lord opposite should regard us in this worthless way.

I have studied the research we have carried out and I have talked to the people. We are one group which is without any commitment to any established place in the whole broadcasting world; indeed, we are one group which is trying to listen to what the ordinary person is saying to us.

My Lords, before the right reverend Prelate sits down, is he aware that for years and years the BBC and the IBA have taken weekly polls of public opinion; that each of them keeps a book of every complaint that comes in; and that when I was there they conducted open meetings throughout the country to find out what people had to say? Is he aware that their polls cover a far wider spectrum than the 750 selected persons with whom he has been in touch? When he says that no one listens to what the viewers say, is he aware that journalist broadcasters are constantly listening to them?

My Lords, I am aware of that. We have been received most courteously by the BBC and the IBA, in contrast to the way I was received by the press barons when I was on the Press Council. But the complaints are bound to be sieved through the central authority of the BBC and the IBA, which have a job to do. Our job is different.

Earl Ferrers

My Lords, it is difficult to find a meeting point between the noble Baroness, Lady Birk, and the noble Lord, Lord Bonham-Carter, on the one side and ourselves on the other, because they do not like the idea of a Broadcasting Standards Council, as they have made clear. One sometimes forgets why the council was set up. It was set up because there was genuine anxiety about the standards of taste and decency emanating from television. The noble Lord, Lord Bonham-Carter, said that that was imposed self-censorship. I can only say to him that if the broadcasters conduct themselves in such a way as to create enormous concern throughout the country it is not surprising that the Government take some action.

Any body which broadcasts has a responsibility to ensure that what goes out measures up to certain standards. I could not help but be amused when the noble Lord said that the amendment clips the wings of
808
a redundant body. If the body is so redundant, I cannot think why he waxed so eloquent in his attack upon it. It seemed to me that he considered that it was anything but redundant. He disliked what it was going to do. He implied that we have more regulatory bodies than any other country.

It is important to keep the matter in the right perspective and not to go over the top. The noble Baroness referred to the previewing powers which the BSC would have. It has no previewing powers; it has the power to monitor. I was pleased that the right reverend Prelate the Bishop of Peterborough supported the BSC. He was right when he said that, if the amendment were passed and the BSC was not able to act upon that which it had monitored, its members would only have to give one of their friends a prod and ask, "Will you please write in and then we can take action?" That is an absurd state of affairs. We believe there to be sound reasons why the council should bring its own complaints to the attention of the broadcasters.

As a result of Clause 152, the council has a monitoring role over programmes which are broadcast. That is partly to enable it to assess trends and patterns in broadcasting in connection with its research functions, but it will also enable it to consider whether acceptable standards of taste and decency are being achieved. In view of the general public concern about standards, it is important for the council to exercise that role.

Given the need for the council to monitor programmes, not to review them——

My Lords, I am sorry to interrupt the Minister, but what is the scientific evidence which shows that there is a great volume of concern? That is what we should like to know. We have been told about it in general terms.

Earl Ferrers

My Lords, I cannot tell the noble Baroness whether there is scientific evidence, but there is sufficient evidence throughout the country for the Government to be concerned and to take some action. All we are doing is to set up a council which will do no more than monitor. If broadcasters broadcast programmes which keep within the reasonable bounds of taste and decency, they have nothing to worry about.

It would not make sense if the BSC could not take action when it became clear that offensive material had been broadcast. In such circumstances, it seems only fair that it should draw its concern, by means of a complaint, to the broadcaster's attention. That would then enable the broadcaster to provide his reasons for broadcasting such material. The council could reach a finding on the matter and decide how it should be reported. That may not always be by means of a broadcast on television or radio. On some occasions, it may consider it sufficient to record it in the general reports it will publish on the monitoring of programmes.

The alternative would be for the council to monitor programmes, arrive, without having obtained the broadcaster's comments, at a view on what it
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considered to be offensive material and then publish that one-sided view in its monitoring reports. I am sure that no one would consider that to be a desirable arrangement.

The noble Lord, Lord Lloyd of Hampstead, was worried that if the amendment were carried the BSC would be unable to take its own complaints to the broadcaster. Complaints from members of the public only would be permitted. As the right reverend Prelate has said, in those circumstances the members of the BSC would only need to suggest to one of their friends that they wrote in.

The fair method is for the council to make its views known to the broadcaster if potentially offensive material is being broadcast, to ask the broadcaster to give his views, and to obtain his response, following which the BSC could arrive at a finding. It is absurd to suggest that the BSC can monitor but then should wait for a member of the public to complain.

If the amendment were passed, it would truncate the complaints procedure. It removes the fair element, which is the provision to consult the broadcaster. If the amendment were accepted, the BSC could nevertheless give vent to its views without having heard the other side of the story.

I do not know whether I can ever persuade the noble Baroness and the noble Lord—I try my best periodically—to understand that the BSC is not a stringent body which will be out to be unduly curtailing or offensive to broadcasters. It is there to protect the public and to ensure that, should the broadcasters overstep the mark and broadcast material that offends the standards of taste and decency, action can be taken.

There is a variety of ways in which the council can do that. It can talk to the broadcasters. It can offer a reprimand or eventually of course it can suggest that its reports should be published in a newspaper or at worst on television. It is merely a check, and a reasonable check, upon what is portrayed on the television screens. I hope therefore that your Lordships will not agree to the amendment.

My Lords, before the Minister sits down, does he agree that that check upon the broadcasters, that defence of the public interest, is the responsibility which is laid upon the Board of Governors of the BBC by Royal Charter? Why should not that responsibility remain there, where it is clearly defined? Why should it be dispersed to other bodies?

Earl Ferrers

My Lords, because it is reasonable that any material that is broadcast, be it via the BBC or ITV, should have a common denominator—the body that considers whether complaints are justified.

My Lords, I listened carefully to everything that was said by the right reverend Prelate and by the Minister. I do not know whether the right reverend Prelate was referring to me when he said that the Broadcasting Standards Council had been described as worthless. I did not say that it was worthless. I said that it was unnecessary.

My Lords, I said that it was quite unnecessary, which may be interpreted in the same way. I still believe that it was unnecessary and nothing has been said to change my mind. I cannot believe that the right reverend Prelate would go to the lengths—and I hope that other members of the council would not do this either—of asking somebody to write in if he thought that something was wrong. If the right reverend Prelate thought that something was wrong, and if the right to initiate complaints was taken out of the Bill, he would have to accept that his judgment was not quite right. He should accept that there should be a subjective judgment. I should be very surprised and shocked if I thought that the right reverend Prelate would play tricks like that. I do not believe that he would do anything like that.

As regards keeping this matter in the right perspective, I thought that the noble Earl was in serious difficulties. I wrote down exactly what he said. He mentioned "enormous concern around the country." The noble Baroness, Lady Seear, asked him on what basis he said that. I must repeat that it is quite wrong and dangerous for a Minister in particular to talk in that way about "enormous concern around the country" without producing any hard evidence. All the evidence goes entirely the other way. As we discovered when we were discussing impartiality, there are not masses of complaints and the public are not writing in in droves or demonstrating about this matter.

Earl Ferrers

My Lords, if there is no concern, then nobody has anything to worry about.

My Lords, I did not say that there was no concern. The noble Baroness, Lady Seear, and I wanted the Minister to explain on what basis he said that there was "enormous concern" around the country. Those were the words he used. He has been unable to give us an answer. We must accept that the council has been set up. However, the point made by the noble Lord, Lord Lloyd of Hampstead, is valid about this area of initiating complaints which is a very small and narrow part of the council's job. If it has to take up complaints from other people, then that is quite enough to keep it busy for some time.

The noble Lord, Lord Bonham-Carter, was right when he listed all the other bodies which are dealing with exactly the same issue. The IBA has the right to investigate and to look at the way in which its own programmes go out, as does the BBC under its Royal Charter. What is the Broadcasting Complaints Commission supposed to do? Is there to be a race between who can get in with the most complaints? This is over-egging the complaints pudding.

It is quite clear that the Government will not move on this issue. Therefore, although it is late at night, many of us feel so strongly about this issue that I intend to divide the House.

§
The noble Lord said: My Lords, the purpose of this amendment is to redefine the word "programme" as used in the Bill so that it will exclude advertisements and thus remove the power of the Broadcasting Standards Council to intervene in radio and television advertisements. I moved the same amendment in Committee. In reply to that amendment, the noble Earl, Lord Ferrers, said:
I do not wish to be obstinate on the matter. Members of the Committee have expressed much concern. I should like to consider what has been said, without commitment".—[Official Report, 25/7/90; col. 1592.]

§
Unhappily little progress has been made. Noble Lords who supported the amendment feel that the issue is so important that it is right to go over the ground again. The noble Earl also said, again at col. 1592, that he could understand,
that some noble Lords do not like the Broadcasting Standards Council".
He made that comment in Committee and he repeated it a few moments ago. I wish to emphasise that this amendment does not in any way stem from dislike of the council. It stems from the inappropriateness of adding the power to regulate advertising to its chief functions. The amendment will not alter those functions in any way.

§
Further, it is essential to grasp at the outset that advertisers accept, and indeed welcome, regulation of advertising on television. The chairman of the council, the noble Lord, Lord Rees-Mogg, wholly misunderstood their attitude when at Second Reading he referred to, as he put it, my request:
that we should exclude advertisers from the consideration of standards. That has been a substantial lobby. The advertisers are undoubtedly keen that they should be excluded. My own judgment is that that is not wise of them and that they are not in a position to come forward and say, 'Look, we are people who should be let off, but ordinary broadcasters who appear in the time which occurs between our advertisements should be subject to the standards provisions'. That seems to be a false position for advertisers to take up".—[Official Report, 5/6/90; col. 1292.]

§
That never was the position of advertisers. As in the case of the broadcasting and advertising industry organisations, as well as of the Advertising Standards Authority, which regulates print advertising, their anxiety arises not from a fear of control but from dismay that the existing machinery of control will be weakened by the power of the Broadcasting Standards Council to intervene in advertising, thus reducing public confidence in advertising to the detriment of the industry.

§
There are almost no complaints about television advertisements on grounds of sex, violence or bad language, the issues which the Minister told us a few minutes ago are the chief concerns of the Broadcasting Standards Council. I am not aware of criticism of the present system of controls for television advertising or of the code which regulates it. Currently some 30 to 40 per cent. of all scripts are vetted. All new television commercials are previewed at a daily viewing session, after which they are formally approved for transmission.

§
I understand that, from the beginning of next year until the end of the current ITV contracts in 1992, the
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essential nature of the regime as it affects present IBA contractors will remain unchanged. The transitional provisions of the Bill effectively transfer to the ITC the powers and responsibilities of the IBA under the 1981 Act for those purposes. From 1993 the ITC's role will be that of a regulatory body rather than a publisher. However, that does not mean that pre-vetting will cease or that the ITC will be removed from decisions about the preparation of advertising.

§
I am informed that it will be a condition of all ITC licences that the licensee has adequate machinery and procedures for checking advertising against the requirements of the ITC code. That will require the employment of suitably qualified people and the retention of suitable consultants.

I have not come across anyone who doubts that much of the television industry believes that the most satisfactory way of discharging that obligation will be to participate in joint copy clearance arrangements on the lines provided by the ITV association. Mr. George Russell, chairman of the ITC, has made it clear to the advertising industry that the ITC will remain accessible in order to minimise the risk of expensive misunderstandings in the production of commercial advertisements. The ITC will be empowered to take swift action to withdraw advertising in breach of the code in those cases where, for one reason or another, the pre-vetting machinery breaks down.

Pre-vetting and prior approval before transmission are the prerequisites of an advertiser's willingness to invest in the advertisements which finance the whole system. Such investments, in the case of any one set of advertisements, may range from £40,000 to over £1 million.

§
Consider what this Bill can do. Under it the Broadcasting Standards Council can require its comments on an advertisement to be screened by the television company. Most programmes are one-off productions. Many advertisements have a large number of showings. That creates a disturbing anomaly. The council can compel a television company to give air time to its view of a programme on a single occasion. In that sense its power over programmes is largely hortatory.

§
In the case of an advertisement the cost of paying for scarce air time to screen the council's opinion of that advertisement every time that it appears as part of an advertising promotion—which may extend to a number of areas of the country and which may include not only television but also the press and promotion in stores and the like—will be so high that the television company will have to withdraw it. The advertiser will suffer the losses that result from the disruption of his advertising programme and promotions.

§
Given that financial situation, a power which is hortatory in respect of programmes will in fact be mandatory when used against an advertisement. In my view such power should not be available to a body which cannot give security to advertisers because it possesses no means to pre-vet and therefore to approve advertisements before they are transmitted.

§
I hope that the Minister will tell the House how the Government propose to remove that discrimination against advertisers. Will they finance a second pre-vetting system to be operated by the council? I understand that it is said that the Broadcasting Standards Council will not use the powers contained in the Bill. That is cold comfort to the advertising industry. After all, people change their jobs and the power in the Bill cannot in any way be removed by a statement of the unwillingness to use it by those who for the time being are in office in that council.

§
Again, the exercise of that power—I presume that it would not be in the Bill if it were not intended that it should be exercised—will lead to further fragmentation of the regulatory bodies dealing with advertising. That has a series of consequences with which I shall not weary your Lordships save to say that there is already considerable confusion among consumers as to where lie the responsibilities for regulating television and print advertising. With a great deal of effort and not a little expenditure such confusion has been largely sorted out. People know where to take their complaints. The Bill will introduce new confusion and further muddle. As the right reverend Prelate said, it is important that the public should be considered. One does not consider the public by muddling them as to where they should take their complaints, as will happen under the Bill.

§
The present system works excellently. There are no complaints about it. No bodies have been formed to replace it or to challenge its incompetences or inefficiencies. There is no logical connection between the Broadcasting Standards Council's power over programmes and its power over advertisements. The two are different in nature. They are different in the commentary that the council can make upon them and in the consequences of the exercise of the council's powers.

§
The case for removing that power from the council is very strong indeed. I hope that on this occasion the Minister will feel able to be more forthcoming than he was in Committee.

My Lords, I wish to make clear the reason that I have put my name to the amendment. I was appalled at the interpretation of the Bill with regard to advertising. The provision can do nothing but add confusion, and worse, in that field. I have no personal knowledge of the way in which the system of the IBA works. However, I have considerable knowledge of regulatory bodies in other fields.

I am in full agreement with everything that the noble Lord, Lord McGregor, said. Advertisements are different from programmes. They are repeated—sometimes many hundreds of times. As the noble Lord said, they can cost up to £1 million. It is therefore essential that they should be approved before they are broadcast. Advertisers would then know that unless something very strange happens, the advertisement will be broadcast. As I understand it, the BSC will have the power to intervene to make complaints about advertisements after they have been broadcast. As the noble Lord pointed out, we know what the likely result will be.

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The purpose of advertising is to increase business; but there are many ways of advertising and not all are on television. We are running the risk of antagonising the advertising industry. We must remember that the industry pays for the television service that we are discussing. If reasonable arrangements are made on an ad hoc basis in order to make the system work it will be essential to incorporate them in the Bill so that when the people who carry out the arrangements leave, their successors will continue.

I feel strongly about the issue. I cannot believe that a government who attaches great importance to business should permit such a provision which I can assure noble Lords will put the system in jeopardy. I have consulted many business friends and all are most apprehensive. They hold grave doubts about whether the proposed system can work. I hope that the noble Earl will accept the fact that I make my comments in the interests of the industry and business generally and not with a political motive.

My Lords, I support the amendment moved by the noble Lord, Lord McGregor of Durris, and supported so persuasively by the noble Lord, Lord Plowden, with all his experience. I do not propose to cover in detail the main arguments raised in Committee by various noble Lords. Some have been mentioned tonight by the noble Lord, Lord McGregor, and others by the noble Lord, Lord Plowden. However, it is important to underline some of the major arguments.

The prime point is that the machinery which already exists for controlling television advertisements and for ensuring that a high standard is maintained is more than adequate and has proved itself. It is the case that under the new system greater reliance will be placed upon the judgment of licensees. However, no one, certainly not the Government, has suggested that that will cause any problems. If the Government had thought otherwise, they would hardly have put forward proposals which they considered inadequate.

Moreover, under the system as it will be operated by the ITC the commission will have a powerful weapon at its disposal, if needed. As we know, and as was mentioned by the noble Lord, Lord McGregor, tonight, the ITC is to make it a licence condition that licensees must have the adequate pre-vetting machinery as now exists. Therefore, if a franchise-holder fails to maintain suitable arrangements, the commission can call it to account and, if necessary, use its power to impose sanctions. Indeed, failure could amount to breach of contract by the licensee.

The next most powerful argument against involving the Broadcasting Standards Council is that it would add another layer of regulatory machinery, which is unnecessary. The Government have made a point of going for a lighter touch and less regulation—a point which the noble Lord, Lord McGregor, has explored in detail, so I shall not do so. Not only is that machinery unnecessary but it would also be disadvantageous, for it would be confusing for viewers and complainants, who would not know to whom to complain.

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Moreover, there would be the added problem that it would place the advertiser and the licensee in double jeopardy. It is hardly an attractive course to abandon a fundamental principle of this country: in this country we do not like to place a person in double jeopardy.

Before dealing with matters which have arisen since your Lordships debated these matters in Committee, there is another point which I should like to mention in connection with an argument raised by the noble Lord, Lord McGregor. It concerned the power of the BSC to require the publicising on television, if necessary, after an offending advertisement has appeared of the adjudication upon that advertisement by the Broadcasting Standards Council. As your Lordships will know, there is no power at all in the Bill as it stands—nor, indeed, has anybody suggested that it should contain one—for the BSC to ban advertisements. However, it has power to require the carrying by the company concerned of an adjudication, if necessary after every time an offending advertisement is shown.

The noble Lord, Lord McGregor, has indicated that if that were to happen no advertiser and no television company would continue to persist in carrying the advertisement because for one thing it would devalue the advertisement itself and for another it would do no good at all to the reputation either of the advertiser or of the television company. Therefore —and this is a point which I wish to add to the argument raised by the noble Lord, Lord McGregor of Durris, on this matter—what that power amounts to in the council is a power to ban the advertisement. If there were intended to be such a power in the Bill, the Bill would say that. Therefore, that is a very powerful reason for not continuing to have advertising included among the remits of the Broadcasting Standards Council.

The only other point I wish to make so far as the pre-vetting question is concerned is the following. The chairman of the IBA shadow ITC, Mr. George Russell, has told the advertising industry that the ITC will remain accessible to give guidance on request to licensees to interpret the code to minimise the risk of costly misunderstandings over the production of advertisements. I understand that the BSC will not do that, and I should like to ask whether that is so. Perhaps the Minister might be able to tell us that later. Will there be any BSC pre-vetting system at all or any advance warning system for advertisers and licensees? I have not gone through all the arguments. Obviously, there are others, but those are some of the main ones.

Since the Committee stage, my noble friend Lord McGregor of Durris and I have met the noble Earl's right honourable friend, the Minister for the Arts, Mr. David Mellor, and I have since had a letter from the noble Earl, Lord Ferrers. It was most helpful of Mr. Mellor to see us and to give us a generous amount of time, and it was very helpful of the noble Earl to write to me as he did.

The letter dealt with one particular point that I raised with Mr. Mellor at our meeting. I wish to refer to that now and am grateful to the noble Earl for
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saying that I may quote the letter. The letter dated 4th October 1990 refers to the meeting with Mr. Mellor on 24th September and suggests that I:
expressed concern that the Broadcasting Standards Council would be 'corralled' by a succession of complainants or an organised lobby into taking up complaints which lacked real substance".
The point that I was making was that I accepted the good intentions and good faith of the council and its chairman, the noble Lord, Lord Rees-Mogg, in saying that it would be able to disregard complaints where it thought fit. However, what would happen if there was a persistent complainant who insisted and believed that his complaint was justified and he then tried to force the council to consider it fully? The letter goes on:
We have examined this point with the Broadcasting Standards Council and we find that this will not be a problem. There is already provision in the Bill (Clause 153 (5) (c) and (d)) which requires the Council not to entertain, or to proceed with, the consideration of complaints if they are frivolous or if it appears to the Council that for any other reason it is inappropriate for them to proceed. There is, therefore, no doubt about the Council's powers to rule out complaints".
That is helpful, but we knew that at Committee stage. The letter continues:
As to their intentions, Lord Rees-Mogg"—
I shall omit some words for the sake of time, but that will not alter the sense, as I am sure the noble Earl will appreciate—
pointed out during the Committee Stage … (Official Report, 25 July 1990, Column 1590) that Clause 153 (5) (d) could be regarded as a means of securing the reasonable treatment of advertising matters. Moreover, during the Second Reading Debate (Official Report, 5 June 1990, Column 1292–3) he emphasised that the Council's approach was to try to support the best existing practice. As he said then, the Council is 'not in the business of trying to intervene for the sake of intervention where there is already good existing practice—.
Again, although helpful, those are matters that we had taken into account in Committee in the first place and, with regard to the other point, on Second Reading. I return to the point: surely it is not solely up to the council? What if the complainant persists with a complaint that he feels is justified and challenges the council? Is a flat statement by the council that it is inappropriate to consider the complaint sufficient? Does it not have to give reasons and are they not open to challenge in the courts?

The letter concludes:
The Council has made it clear that it recognises that there is a distinction between programmes and advertisements, and that this may need to be reflected in the procedures. The Council has always been prepared to discuss the fears of advertisers in order to ensure that they are not peculiarly disadvantaged under its proposed procedures, and I am quite sure that it will proceed in a fair and sensible way. I hope that, in the light of the position which I have outlined, you will feel reassured on this point".
The general approach of the letter is helpful and is plainly intended to be reassuring, as are the stated intentions of the chairman of the BSC, the noble Lord, Lord Rees-Mogg. However, there are three considerable problems on this matter. First, if the council intends to use the requirement in Clause 153(5) (d) to
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rule out the vast bulk of complaints on advertisements, as it seems to be planning on quite reasonable grounds—I use the word "reasonable" in its legal sense—that process becomes the rule rather than the exception. That surely means that there is no point in having provision for the council to intervene in advertising matters. That is another reason why we feel that the amendment is right.

The next point is that we have had no full statement of the way the council will operate; no full statement of any guidelines. There has been no indication of any agreement with the IBA/shadow ITC or details of consultations on the way those bodies will operate and co-operate to ensure that, as intended, the ITC remains the regulatory body for these purposes. There has been no definition of the term "appropriate" to show how the council intends to decide what it is likely to regard as appropriate or otherwise.

The final problem is this. However well intentioned the present chairman and members of the Broadcasting Standards Council are, how can they bind their successors? How can we be sure that the successor of the noble Lord, Lord Rees-Mogg, will be as reasonable and well intentioned as he is and as I believe him to be? How can the Minister provide us with the reassurance with which he plainly seeks to provide us, that in the event of a dispute those statements of intent will prevail and that the letter of the law will uphold them even though they are not on the face of the Bill?

It is on those two considerable problems as we see them that we feel we need undertakings. I feel sure that the Minister will acknowledge that we are entitled to seek those undertakings in time to consider them before Third Reading, unless he is now able to accept the amendment. I ask the Minister to undertake at the very least to spell out those various points plainly. I hope that he will agree that that is owed to the viewer, to the industry and to your Lordships and is a long way from being too much to ask.

My Lords, I spoke on this point at Second Reading and intended to support the noble Lord, Lord McGregor, at Committee stage, which regrettably I missed due to a misunderstanding over timings. I am not sure that there is much I can usefully add to the speech of the noble Lord, Lord Boston. However I promise to speak for only 60 seconds.

Part VI of the Bill does not specifically mention advertising. As the Bill stands the Broadcasting Standards Council has the power to impose decisions on individual advertisements over the heads of the other regulatory bodies which will have the primary responsibility for that work. I agree with the IBA that that is likely to cause confusion and does not take account of the important differences between advertisements and programmes.

Most programmes are broadcast once, whereas advertisements usually run for several weeks or months. Any complaint concerning a programme is usually a retrospective disapproval. A specific complaint concerning an advertisement usually requires immediate action to prevent its further
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showing or have it amended before the next transmission. It is that essential difference which will draw the BSC far more directly into advertising regulation than will be the case for programmes.

As the Bill stands the BSC will have a statutory duty to consider, investigate and decide on all complaints made to it. Those investigations will be in parallel to those of the ITC and the Radio Authority as regulators. That duplication and practical regulatory overlap will be confusing to viewers and listeners, who will not know who to complain to, and to advertisers, who will face the possibility of investigation from more than one regulatory body.

The amendment, for which my noble friend showed a great deal of sympathy at Committee stage, effectively removes advertising from the remit of the BSC and should be welcomed.

My Lords, I should reveal for the benefit of those who were not here when I last spoke that I am a future member of the Broadcasting Standards Council. I say that because we have no existence until after the Bill is enacted, although we appear to be rather busy.

I thank the noble Lord, Lord McGregor, for his great courtesy towards us; it made a pleasant change for me. I should like to try to express our point of view on the matter. I turn to the viewer. The viewer does not distinguish between advertising and programmes; they all come out of the box in the corner. Some people prefer the programmes and make tea while the advertisements are on; other people actually prefer the advertisements and are less interested in the programmes; but for both it all comes out of the box. They do not distinguish between the two. Therefore, to the viewer the advertiser and the normal director or producer of a programme is the same sort of person.

I find it hard that it should be said that the amendment is to the detriment of the advertising industry. This is an extremely successful and enormously rich industry. It has survived enormous changes in English life. It has a great spirit of adaptability. When the rules are changed it will adapt. We have no intention of imposing on the advertisers, if we were allowed to do so, any more than we impose on the maker of programmes—nothing more than the code of practice which is concerned with sex, violence, taste and decency; nothing further than that. We are not going to push anything further upon them. We are going to say that matters come before us because viewers are uneasy about what they see in the terms I have described.

Viewers are not going to distinguish subtlely between the different channels, and they are not going to distinguish subtlely between ordinary programmes and advertisements. It is all television and viewers merely want somewhere to take their complaints and discuss what disturbs them. We feel that with all our faults, which have been placed before your Lordships we are the place for them to go.

My Lords, will the right reverend Prelate give the House his evidence that
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viewers have clearly expressed their desire to go somewhere to make complaints about sex, violence and obscene language in advertisements?

My Lords, as I have journeyed the country viewers have expressed to me a deep unhappiness about these matters, as anyone who appears on any platform anywhere will also know. They are not bothered about whether they come from programmes or advertisements. By and large advertisers probably have a good record. I am not arguing about that. I am arguing about what the viewers see. If they see programmes and advertisements as a whole, it is easier for them. If they are told that there is a subtle difference, it is more difficult.

I move on to the question of air time. The use of television air time to carry adjudication is the absolute end of the road. It is the intention of the council to produce a monthly digest of any findings it may have. It is the intention of the council on particular issues to set these before the press. The press may or may not use them. It is the final sanction to require the companies to broadcast them. That would be evidence of the deepest offence.

We must not live in a fantasy world. Before I served on the council I was on the Video Consultative Council. I saw videos which shocked me beyond measure. They were unseemly, and they came from the United States and Europe. When they actually shocked Claire Rayner as well, I knew I was on to the right sort of thing! There are some very nasty things available in society. We are saying that we do not want them. I do not for one moment believe that J. Walter Thompson will produce them, but every viewer has a right to protection should be so choose.

I now refer to pre-vetting. We are not allowed to pre-vet; that has been agreed. Other people pre-vet. Pre-vetting can fail. If a viewer feels that pre-vetting is not protecting him, he has a right to speak. It seems to me that we open the doors to that right. My young accountancy friends refer to the bottom line. The bottom line is not the television companies. They have done very well. It is not the television producers. The bottom line is certainly not the advertisers. The bottom line is the viewer, who features so little in this debate as I keep saying. This gives the viewer a chance to go somewhere to complain. He or she may be right or wrong but that does not matter; he or she has the right to do so. We believe that that right should be available across the board on television. I asked noble Lords to resist this amendment.

My Lords, before the right reverend Prelate sits down, I wish to put this point to him. Throughout our debates both in Committee and on Report repeated references have been made by the noble Earl, Lord Ferrers, by my noble friends on the Front Bench, Lady Birk and Lady Ewart-Biggs, by my noble friend Lord Ardwick, by the noble Lords, Lord Thomson of Monifieth and Lord Bonham-Carter, and other noble Lords in all parts of your Lordships' House both on the Government Benches, the Cross-Benches and by Members on this side of the Chamber, to the plain and simple fact, which I have also joined in pointing out,
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that paramount in our thoughts at all times is that we serve the interests of the viewer. He is foremost in our minds. I hope that the right reverend Prelate will accept that.

My Lords, I had not intended to enter into this debate until the noble Lord, Lord McGregor of Durris, referred to it as being a discrimination against the advertising industry. It was put in similar terms by those who have supported him in this amendment. To my mind the discrimination is the other way round: it is the amendment that asks for discrimination in favour of the advertising industry. I agree with the right reverend Prelate when he said that this Bill is concerned with the viewer and the ultimate consequences to him. The problems that the advertising industry and others may have in meeting the terms of the Bill may be of concern to them. The Bill is directed at providing certain standards for the viewer. I find it difficult to see why we should discriminate in favour of the advertising industry when so much of the viewer's time is inevitably spent looking at the advertisements.

One of the points made by noble Lords speaking in favour of the amendment is the problem of advertisements which are repeated time and time again. That being so, it is all the more important that those advertisements should be scrutinised and be subject to the same standards as those which apply to programmes which are seen only once. Having heard the speeches so far, I feel unable to support this amendment.

My Lords, I ask the noble Earl this question: who will appoint this great body that is to look after our morals on television? How are the members of that body appointed? How can the public complain against its judgment if they so wish? Perhaps I may also make the blindingly obvious point that if people do not like what is on the screen they can always turn off the television.

The Earl of Stockton

My Lords, I cannot agree with the right reverend Prelate. I am a viewer and a consumer and, in common with most viewers and consumers, I have no trouble in distinguishing the programmes from the advertisements. The right reverend Prelate underestimates the discrimination, common sense and intelligence of the viewing public. I am aware, as are most viewers, of the "tick" promotion which has been successfully run by the advertising industry. Through it we, the public, know how to complain about advertisements whether they appear in the press, on hoardings, radio or television. Of all the regulatory authorities, that is certainly the one of which I and, I am sure, most members of the public, are the most aware.

The existing machinery and the implementation of the code at present seems to be entirely satisfactory. Why do we not leave it well alone?

My Lords, I know that the Broadcasting Standards Council and its role in relation to advertising is a matter which has exercised
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your Lordships and those who are responsible for the regulation of advertising besides the advertising industry as a whole. Everyone is exercised about this matter.

I realise that the concerns which have been expressed this evening are very real. It was as a result of the concerns expressed at the end of the debate on this subject in Committee that I undertook without commitment to consider what had been said. It was the least that I could do and it was wholly appropriate. I have looked at the matter again and I have considered it a great deal. Following that consideration, the Government continue to believe that it is right for advertisements to form part of the Broadcasting Standards Council's remit.

The noble Lord, Lord McGregor of Durris, said that the provision would regulate advertising. With respect to the noble Lord, that is going too far. It does not regulate advertising. He said that the existing machinery would be weakened. I see no reason why it should be weakened. At present, advertisements are cleared by the ITV association and the IBA. In future they will be cleared by the broadcasters themselves —in other words, by the ITV companies—and not by the regulatory body, which is the ITC. In that respect, the same principles will obtain in the future as have in the past.

The noble Lord, Lord Boston, asked whether there would be pre-vetting. There will not be pre-vetting. That is not the business of the Broadcasting Standards Council. The noble Lord also asked about the interpretation of the ITC code. There will not be pre-vetting; nor will it be for the Broadcasting Standards Council to interpret the ITC code on advertising. That is entirely a matter for the Independent Television Commission.

My Lords, I am most grateful to the noble Earl and I hesitate to interrupt him. I was asking not about the interpretation of the ITC code, but about the way in which the BSC proposes to work, and, in particular, about the interpretation of the word "appropriate". How will it give guidance and interpret whether or not a complaint is appropriate or inappropriate when it comes to considering it or ruling it out from its consideration?

Earl Ferrers

My Lords, perhaps I may be allowed to come to that—I was going to say "in the fullness of time" but I hope that it will not be quite as full as that —a little later on.

In one of her characteristically trenchant interventions, the noble Baroness, Lady Seear, asked who will appoint the Broadcasting Standards Council. It will be appointed by the Home Secretary. She also asked whether people would be able to complain about the complaints made by the Broadcasting Standards Council. We can go on complaining about complaining about complaining. The Broadcasting Standards Council's job is to consider the programmes. It can then take various courses of action. Anyone can complain to the Broadcasting Standards Council. It does not necessarily have to take action.

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Many noble Lords do not like the idea of the Broadcasting Standards Council. If we are to have a Broadcasting Standards Council it would be absurd to allow it to monitor programmes but not advertisements. The central issue is whether the Broadcasting Standards Council's remit should extend to advertising. I agreed with my noble friend Lord Boardman when he said that this amendment would discriminate in favour of the advertisers. The Government believe that the provision should cover both programmes and advertisements.

The House will be aware of the Government's reason; for establishing the council. I do not believe that I need rehearse them again. It should be sufficient to say that standards of taste and decency are matters which concern us all. How we achieve those standards is open to different views. A viewer's or a listener's sensibilities about standards of taste and decency do not begin and end with programmes; they do not lessen during natural breaks for advertising. Advertising amounts to some 10 per cent. of air time, and in our view it would be neither logical nor defensible to have a situation in which the public could complain to the Broadcasting Standards Council about objectionable material in programmes, but not about the same kind of material in advertisements. It has been argued that the continued existence of the present system for the regulation of advertisements will mean that viewers will not be offended by them. However, we should not assume that this will always be the case.

The noble Lord, Lord McGregor of Durris, said that the present system was excellent, that there had been no complaints and that some of the advertisements had cost up to £1 million. That is perfectly true. But if the present system is so good and the advertisements are so good, there is not much likelihood that there will be complaints about them. The only point in having such a council is that if standards do not remain as they have been, then action will be able to be taken.

The council has given a great deal of thought to the procedures which it will follow in the handling of complaints about advertisements. It is very sensitive to the distinctions between programmes and advertisements, and to the role of the regulatory bodies. The Broadcasting Standards Council does not intend to work in isolation from those bodies. The council has no sanctions beyond publication of its findings. It has already made it clear that in arriving at its findings it would carefully take into account any action which the regulatory body or the licensee had taken, or proposed to take, in respect of a particular advertisement. In some cases, this might mean that the council could simply report that action to its complainant.

In cases where the regulatory body or the licensee had yet to complete its considerations of a complaint, the council has indicated that, provided the delay was not unreasonable, it would be prepared to await the outcome of that consideration before completing its
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own examination of the issue. In this way, it would take care not to pre-empt any action by the ITC or the licensee.

Apart from these procedures, the council will, under the terms of the Bill, be required to send a copy of any complaint it entertains to the broadcaster and to the broadcasting regulatory body. That will give both the licensee and the ITC the opportunity to comment on a complaint. If they are taking action, or are making further inquiries—for example, about public attitudes to an advertisement—they can say so at that stage. This also emphasises the point I have been trying to make, which is that the council will neither act in isolation from the regulatory bodies, nor attempt in any way to undermine their responsibilities. Consultation will be a proper and important part of the procedures of the Broadcasting Standards Council.

What action therefore can the Broadcasting Standards Council take? The noble Lord, Lord Boston of Faversham, asked whether I can confirm that the council has no power to ban advertisements. That is correct; it has no power to do so. I think he also said that if an advertisement contained a mention of a rebuke from the Broadcasting Standards Council that would in effect ban it and would be a very substantial power. In fact, I am not sure whether it was him or the noble Lord, Lord McGregor of Durris, who raised that issue.

My Lords, I am most grateful. I thought that the noble Lord, Lord Boston, was generously nodding his head in dissent. However, I am quite happy to give credit to both noble Lords for having raised the issue. Of course, it is perfectly true. If advertisers were obliged to put a note at the bottom of the screen stating that what is shown has "offended the Broadcasting Standards Council", clearly that would be a fairly strong deterrent. I have no doubt that they would ensure that this would not happen. Moreover, according to the noble Lord, Lord McGregor of Durris, the standards are so high at present that that would not happen.

Perhaps I may move on to deal with a point about which the noble Lord, Lord Plowden, expressed concern. I must make it clear that the BSC is not obliged to publicise its findings on every occasion a complaint is made or even in every case where it may have made an adverse finding. Where the BSC considers publication, it has announced that it has in mind three separate forms of publication of its findings. The first is that there will be a regular summary of findings on complaints published by the council. The second is an insertion in the press, either at national or local level; and the third is a broadcast announcement of its findings. I agree that that is a hefty power, but it would be wrong for your Lordships to consider that that is the kind of power that would be used on each and every occasion. That would be its final and greatest power.

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The council has made it clear that it envisages broadcast announcements being used only for matters invoking major principles or about which there has been great public controversy. It is most unlikely therefore in the light of information that the IPC or a licensee is publicly taking action about an advertisement that the council would find it necessary to exercise the option for publicising its own findings.

There is a stage before that which has also been the subject of concern; that is, the council's discretion not to entertain complaints. That is a matter about which the noble Lord, Lord Boston, was worried. Fears have been expressed that the council will be forced into entertaining complaints which have no merit merely by pressure of weight of numbers or through sustained lobbying.

Perhaps the noble Lord, Lord Boston, would be good enough to look at Clause 153. He will see that it makes provision for that discretion. I refer him to Clause 153(5) (c) and (d) which provide that,
The council shall not entertain, or proceed with the consideration of, a complaint if it appears to them—that the complaint is frivolous, or that for any other reason it is inappropriate for them to entertain, or proceed with the consideration of, the complaint".
There is no doubt therefore that the council has a necessary discretion not to proceed with a complaint. As a responsible body, it will be expected to exercise that discretion. It has also made it clear that it is not in the business of intervening purely for the sake of intervention.

As I have explained, the council does not have to give its reasons. The noble Lord, Lord Boston, asked how the new BSC members would interpret discretion on complaints. By the time the new members join the council, there will be an established practice for dealing with complaints and there will be continuity of practice which will enable sensible procedures to take place. The noble Lord referred to the council's reasons for not entertaining complaints. That of course is a matter for the council to decide. It must consider whether to deal with the complaint, and the circumstances in which it would not be appropriate to pursue it. It must decide what is appropriate and what is not. It would not be right for me to fetter it by suggesting what those circumstances might be.

I accept that this is a difficult and controversial issue. I know that your Lordships feel strongly about it, but I do not see that advertisers need have anything to worry about provided that the standards are reasonable. It has been said by a variety of people, including the noble Lord, Lord McGregor, that their standards are high and that they go through a procedure now to ensure that their standards are high. That system will continue in the future in a modified form. If that happens, it is unlikely that the council would have cause to concern itself, but if a member of the public complains to it it would be unreasonable to say, "Yes, you can complain about this if it is in a programme, but you cannot complain about it if it is in the advertising slot". I hope therefore that your Lordships will agree to leave the Bill as it is.

My Lords, it is late but I wish to make a few very brief comments on one or two speeches which have been made by noble Lords.

First, the right reverend Prelate said how necessary it was that the public should have the means of complaining right across the board, the board to include complaints about advertising. One would think that that power did not exist at present. Not only do people complain regularly but the IBA publishes a monthly booklet setting out all the complaints which it has received and its response to them. It really cannot be maintained that that power for the Broadcasting Standards Council is necessary to enable the public to complain.

The noble Lord, Lord Boardman, said that it was discriminating against the public if the power of the Broadcasting Standards Council to deal with advertisements was removed because he said that it was essential that standards should be the same. However, standards are very different. The standards applied to advertisements are much higher than standards applied to programmes and those which will be applied to programmes by the Broadcasting Standards Council. I believe that there is" a touch of perversity in that argument.

I appreciate the courtesy with which the Minister dealt with the points raised. He said that the BSC would not regulate. However, the Bill endows it with the power to regulate and there is no doubt about that. It does that for the reason pointed out by the noble Lord, Lord Boston of Faversham, and myself, because in practice its powers against programmes are hortatory: its powers against advertisements can and must remove them from the screens. That is a genuine power. It may be true, as the noble Earl said, that it has no sanctions other than to publish its findings but the publication of its findings has radically different results depending on whether the publication deals with programmes or advertisements.

Those noble Lords who have tabled this amendment believe that the issue is of very great importance and that the conferring of these powers will potentially damage an admirable working institution. For that reason, I regret that we must ask the House to give its opinion on the amendment.

§Lord Monson moved Amendment No. 333A:
Page 237, line 13, at beginning insert ("Insofar as permitted under international law").

§
The noble Lord said: My Lords, although the two amendments in my name have been grouped together, they deal with distinct and separate issues and I shall therefore, if I may, speak to them separately.

§
Amendment No. 333A provides that the very draconian powers conferred by Schedule 14, namely the powers to board foreign ships forcibly on the high seas, possibly employing our Armed Forces to do so, and then to search the ship and all those on it, seizing equipment, documents and the like, can be brought into play only provided that there is no conflict with international law.

§
When we debated the matter in Committee in July my noble and learned friend Lord Wilberforce, with all his enormous experience, very much doubted that all the powers conferred by Schedule 14 were in accordance with international law. His doubts are shared by a number of other legal experts. On the other hand, the noble Earl, Lord Ferrers, with all the expertise and resources of his department at his disposal, as well as those of the DTI, thinks otherwise —even though the Government concede that they are not relying on the effects doctrine, notwithstanding that the noble and learned Lord, Lord Wilberforce, maintained that the effects doctrine was the only conceivable justification for what the Government were trying to do.

§
Since then the Gulf crisis has arisen and we have been able to see how cautious and reluctant member states of the United Nations are about permitting the stopping and boarding of vessels on the high seas even when it involves matters which are, objectively speaking, several hundred times as grave as the mere transmission of unauthorised broadcasts. Indeed, the degree of force permitted in the course of stopping ships that may be carrying arms and vital strategic supplies to Iraq appears to be much more restricted and limited than the degree of force that Schedule 14 permits in order to stop the essentially harmless albeit illegal transmission of unauthorised broadcasts.

§
Under international law we would still appear to be governed by the global radio regulations of the International Telecommunications Union adopted in 1959, the 1958 Geneva Convention and the 1965 Strasbourg Convention, none of which permits the boarding of foreign-registered vessels on the high seas merely for the purposes of stopping unauthorised broadcasting.

§
On 18th June 1964, the noble Lord, Lord Newton, speaking in your Lordships' House, told noble Lords that:
The Wireless Telegraphy Act, 1949, … does not extend to foreign-registered or unregistered ships on the high seas, and it could not be amended so as to purport to extend to them without raising serious issues affecting the concept of freedom
830
of the seas—and that is a concept which Her Majesty's Government are anxious to preserve". [Official Report, 18/6/64; col. 1376.]
On 15th February 1967, Mr Ted Short (as he then was), speaking in his capacity as Postmaster General, said in the House of Commons:
Obviously, we cannot legislate directly against broadcasting on the high seas in circumstances which would be outside the jurisdiction of our courts. Nor can other countries. It would not be consonant with international law in its present state". [Official Report, Commons, 15/2/67; col. 634.]
It is true that since then we have had the 1982 United Nations Convention on the Law of the Sea, which permits such action in certain circumstances. Unfortunately for the Government, hinging their case on the 1982 convention has two snags. The first is that the United Kingdom is not a signatory to that convention. The second and more important snag is that the convention has only been ratified by 41 countries and its provisions can only come into effect 12 months after at least 60 countries have done so. Obviously that will be some time off.

§
The question appears to remain wide open therefore. Hence the vital necessity of this amendment or something like it. I beg to move.

§Earl Ferrers: My Lords, I have some sympathy with the noble Lord's concern that the new enforcement powers should be exercised in accordance with international law. I can give him the assurance that the powers will be exercised in accordance with international law. But to require the United Kingdom courts to consider the state of international law, which is what Amendment No. 333A would do, would be unprecedented. I suggest that that is neither necessary nor in that case desirable.

§
Interpretation of international law is properly a matter for international courts, which already provide a remedy should enforcement action be taken which did not comply with international law.

§Lord Monson: My Lords, the statement by the noble Earl to the effect that the insertion of such a phrase in legislation would be without precedent casts a slightly different light on matters. I am reassured by his statement from the Dispatch Box. It will go down in Hansard and will be available to those who may wish to take note of it on future occasions.

§
I should like to study the matter a little further and ask other people who are interested in this matter to study it as well. For the time being I beg leave to withdraw the amendment.

§Lord Monson moved Amendment No. 333B:
Page 237, line 52, at end insert:("(5A) Searches of persons carried out under the provisions of subsection (5) above shall be subject to the constraints imposed by the Police and Criminal Evidence Act 1984, notwithstanding that such searches may take place outside the United Kingdom or its tidal waters").

§
The noble Lord said: My Lords, the purpose of this amendment is fairly straightforward and self-explanatory. It ensures that any personal searches carried out under the provisions of Schedule 14, which
831
include strip searches and intimate body searches, shall be subject to the safeguards, limited though those may be, to the rights and dignity of individuals which are enshrined in the Police and Criminal Evidence Act 1984. The only safeguard that is missing is that requiring an annual report to be laid before Parliament listing the statistics for searches carried out. I have not been able to devise a form of words that would allow that provision to be incorporated, but perhaps something can be added at a later stage to cover that omission.

§
The noble Earl, Lord Ferrers, was good enough to write a id assure me that it would indeed be the case that searches of persons would be carried out in conformity with the provisions of the 1984 Act. Unfortunately, while the Police and Criminal Evidence Act extends to vessels and off-shore installations within territorial waters, it does not appear to extend extraterritorially, any more than does the bulk of our legislation. Without the inclusion of this amendment, or something very similar, it would appear that civilians could be searched by members of the armed forces, women could be strip searched by men and the other way round, and both sexes could be intimately searched by someone with no medical knowledge or qualifications. I am sure that noble Lords would regard such a provision with abhorrence. Accordingly, I beg to move.

Earl Ferrers

My Lords, the noble Lord Lord Monson, has a vivid imagination over these matters. I assure him that the PACE Act code of practice will apply with the present drafting even if the powers are exercised outside the United Kingdom or the United Kingdom's territorial waters. What is important from the point of view of the applicability of the PACE Act code is where the proceedings take place and not where the enforcement powers are exercised. I hope that the noble Lord will be content with that explanation.

My Lords, I am not entirely satisfied. The noble Earl implies that no searches will be carried out on the high seas. If that is the case, it helps matters. However, there is nothing in the Bill as drafted to provide that searches shall be carried out only within the United Kingdom or its territorial waters. That is the sole reason for my amendment. I would not have brought the issue up if I had thought that the Bill provided that all searches should be carried out within the UK. That does not appear to be the case. Can the noble Earl give me some reassurance on that point?

Earl Ferrers

My Lords, I find it difficult to give the noble Lord more reassurance. I said that the PACE Act code of practice will apply with the present drafting even if the powers are exercised outside the United Kingdom or the United Kingdom's territorial waters.

My Lords, I am not a legal expert, as the noble Earl is well aware. The position seems strange, and I shall have to have someone consider it with an eagle eye. I beg leave to withdraw the amendment but reserve the right possibly to bring it back at another stage.

§
The noble Earl said: My Lords, in moving this amendment, it might be for the convenience of the House if I also speak to Amendments Nos. 335 to 338. They all relate to forfeiture when a person is convicted of certain offences under the Wireless Telegraphy Act. Clause 171 extends the forfeiture provisions so that the court can order the forfeiture of any equipment or apparatus used to make illegal broadcasts. It is an important element in enforcement against pirate radio.

§
The new subsection (3AA) at the top of page 135 exempts apparatus which can be used only for receiving from forfeiture, reflecting the fact that unlicensed reception is a less serious offence than transmission. However, the more sophisticated pirate stations are increasingly using receivers in their operations. For example, they set up links between studios and remote transmitters to make detection more difficult. It would be anomalous if pirates' receivers were therefore not liable to forfeiture in the same way as other equipment would be. The amendments ensure that that is the case. They also make some other minor drafting improvements. I beg to move.

§Earl Ferrers moved Amendments Nos. 335 to 338:
Page 134, leave out line 41 and insert ("in relation to which the offence was committed or which was used in connection with the commission of it;").Page 134, line 43, leave out ("which was not so used but") and insert ("not falling within paragraph (ii) above").Page 135, line 4, leave out from ("or) to end of line 7 and insert ("subsection (3) (a) above does not apply in a case where the offence is any such offence as is mentioned in subsection (1A) (a) or (aa) above.").Page 135, line 17, at end insert:("(5) In subsection (3E), for the words from "(whether" to "provision" there shall be substituted ", shall be treated as an offence committed under the same provision, and at the same time,".").

§
298A. (1) A person who makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to decode—

(a) encrypted programmes included in broadcasting or cable programme service provided from a place in the United Kingdom where any charge is applicable to the reception or decoding of the programmes, or

(b) encrypted transmissions of any other description sent from a place in the United Kingdom

833
without the authority of the person making the charges or sending the transmissions with intent to enable or assist any person to do so commits an offence.

(a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.

§
(3) The provisions of sections 108 to 112 shall apply in relation to any apparatus or device of the kind described in section (1) as if—

(a) the apparatus or device were an infringing copy of a copyright work;

(b) the person making the charges or sending the transmissions referred to in that subsection were the owner of the copyright in such work;

(c) the reference to offences under section 107 in sections 108 to 110 were references to offences under this section;

(d) the person referred to in subsection 3(b) was a person entitled to give notice under section 111(3).") .

§
The noble Lord said: My Lords, in moving Amendment No. 339, I wish also to refer to Amendments Nos. 340 and 362. Perhaps I may remind noble Lords that in Committee I moved Amendments Nos. 339 and 340 in precisely the form in which they are repeated here. The noble Lord, Lord Sanderson, on behalf of the Government, expressed agreement in principle with the objective of my amendments. However, he expressed reservations about the second amendment and indicated that he would propose his own amendment on Report. On that understanding I withdrew my amendment.

§
The Government have tabled Amendment No. 362. However, I venture to repeat my amendments because, with great respect, there appear to be deficiencies in the Government's new amendment. In view of the lateness of the hour I shall not go over the ground in detail. My amendments have the support of a number of semi-public bodies, including the BBC and Sky Television.

§
The purport of the amendments is to strengthen the position of broadcasters of encrypted programmes so as to prevent unauthorised persons decoding them without making payment to those charging for the broadcasting of such programmes. As I pointed out in Committee, the issue was raised in a case which went as far as the Court of Appeal and an appeal is pending to your Lordships' House sitting in its judicial capacity. In that case an attempt was made to invoke Section 298 of the Copyright, Designs and Patents Act to deal with the situation. The argument prevailed in the Court of Appeal, which reversed the judgment of the High Court. Even if the appeal to this House is upheld I venture to suggest again that the position will remain unsatisfactory because Section 298 provides only a civil remedy and does not provide for criminal sanctions. It is generally agreed—and this was the principle accepted by the noble Lord, Lord Sanderson —that criminal sanctions are more appropriate. The
834
use of civil courts would be clumsy, expensive and inappropriate in many situations.

§
I refer your Lordships to Amendment No. 362 tabled by the Government and draw attention to what appear to be certain deficiencies which I ask them to reconsider. First, your Lordships will observe that the new offence is to be made punishable only by a fine. There is no alternative of imprisonment as provided by my amendment. It is thought—and I suggest that it is the correct view—that a mere fine in such a case will not afford an adequate deterrent against people who are determined to deal with unauthorised decoders in this way.

§
Secondly, Amendment No. 362 provides specifically for a defence based on either lack of knowledge or no reasonable ground for knowing that the decoder was unauthorised. That is a considerable weakening of the proposal to make the offence a criminal matter because such a defence can be raised easily. Once raised it is extremely difficult to rebut as is agreed by most lawyers who are concerned with cases involving the knowledge of various matters. Therefore my suggestion would be that this is a considerable weakening of the proposal.

§
Thirdly, my amendments provide for the supplementary remedies in Sections 108 to 112 in the copyright Act to be made applicable, but the new proposal does not cover that ground and does not embody those supplementary remedies.

§
It is a matter of considerable importance that the vital phrase in Section 298—which was the subject of conflicting decisions in the High Court and the Court of Appeal, and which led to all the doubts—namely, the phrase "when they are not entitled to do so", was proposed to be substituted by the words in my amendments:
without the authority of the person making the charges or sending the transmissions".

§
That would make it perfectly clear that the argument which was put forward in the BBC Enterprises case to which I referred could not possibly avail. However, unfortunately in the amendment that the Government propose there is no reference to this change. That is particularly surprising because in Committee the noble Lord, Lord Sanderson, appeared to agree with my proposal on this point and said that he intended to amend Section 298 to confirm the broadcasters' proprietary rights and ensure that they are protected. Yet notwithstanding that indication, there appears to be nothing in the present amendment which covers that ground.

§
For those reasons I suggest that the amendment put forward is not fully adequate. I would therefore ask the noble Earl, Lord Ferrers, whether he would be prepared to reconsider those aspects of the matter and possibly embody further changes in any amendment that the Government wish to rely upon at Third Reading. I beg to move.

§Earl Ferrers: My Lords, I realise that the amendment of the noble Lord, Lord Lloyd of Hampstead, goes somewhat further than mine.

§
My noble friend Lord Sanderson made clear during the Committee stage of the Bill that the Government shared the concern of the noble Lord, Lord Lloyd, and other noble Lords over satellite signal theft. We undertook to bring forward amendments to the Copyright, Designs and Patents Act 1988 in this Bill to create a criminal offence for the making, importing, selling or letting for hire of unauthorised decoders. The Government's new clause, which is Amendment No. 362, fulfils that undertaking. It follows closely in intent and purpose the new clause proposed by the noble Lord, Lord Lloyd, in Amendment No. 339. The only substantive difference between the two is that the noble Lord, Lord Lloyd, seeks maximum penalties for those offences of up to two years' imprisonment, whereas we consider that a maximum penalty of a fine up to level 5 on the standard scale is more appropriate.

§
The amendments of the noble Lord, Lord Lloyd, also make provision for Sections 108 to 112 of the copyright Act to apply. I understand the noble Lord's concern, and indeed I share it, but I am not sure that it would be necessary for all those sections to apply.

§
I regret that I cannot advise noble Lords to accept the noble Lord's new clause as it stands and at this stage o the Bill's consideration I cannot in fairness tell the noble Lord, Lord Lloyd, that I shall undertake to consider the matter further. I hope that our new clause in Amendment No. 362 will enable the noble Lord to withdraw Amendment No. 339.

§
The government new clause also gives effect to the commitment given during Committee stage to extend the protection already offered to United Kingdom television services under the Copyright, Designs and Patents Act to services from abroad, regardless of whether the country of origin offers reciprocal protection for United Kingdom broadcasters, in circumstances where it appears to the Secretary of State that the reception of those services in the United Kingdom is materially affecting United Kingdom broadcasters. We believe that that will be a useful measure which will deter the piracy of foreign satellite television services at the expense of British satellite broadcasters. The amendment will effectively mean that, by order, any person who dishonestly receives a programme included in a broadcasting or cable programme service provided from a place outside the United Kingdom with intent to avoid payment of any charge applicable to the reception of that programme would also commit an offence.

§
My noble friend Lord Sanderson also indicated at Committee stage that we would bring forward proposals to deal with a potential difficulty in Section 298 of the Copyright, Designs and Patents Act 1988 which has come under scrutiny as a result of a recent judicial comment. Briefly, an electronics company made decoders which were adapted to decode BBC TV Europe, a satellite service which sends coded transmissions of BBC programmes to other Western European countries. That was done without the authority of the BBC. Proceedings were brought
836
under Section 298 of the Copyright. Designs and Patents Act 1988. It was held in the High Court that the section did not apply because it could not be said that the persons receiving the programmes were not entitled so to do. Subsequently, that decision was reversed by the Court of Appeal and an appeal is pending to this House in its judicial capacity.

§
We recognise the nature of the difficulty here. I understand why the noble Lord, Lord Lloyd, has tabled his Amendment No. 340 which to a large extent seeks to overcome this particular problem. However, I hope that noble Lords, including the noble Lord, Lord Lloyd, will agree that it would be premature to try to revise Sections 297 to 299 to cover this instance, when it is not yet clear whether Section 298 of the Act will be held to be appropriate for the circumstances at issue in this case.

§
These are complicated matters and I hope that the noble Lord, Lord Lloyd, will agree that the amendment in my name covers the majority of his concerns, but I accept, for the reasons that I have given, that it does not cover them all.

§Lord Lloyd of Hampstead: My Lords, I am much obliged to the noble Earl for the courteous manner in which he has dealt with my proposals. I feel a little disappointment because it seems to me that this was an excellent opportunity to clear up a number of doubts and obscurities which are perhaps unlikely to be given an opportunity to be aired for a great many years. Accordingly, it seems a lost opportunity.

§
On the other hand, I recognise that much of that difficulty flows from the incredible pressure on time to which we are subjected at the end of a Session when the Government must get this complicated legislation through and are therefore resistant to any amendments which will possibly hold things up. One can feel some sympathy for that, but, on the other hand, some considerable regret that our parliamentary process works in such a way that we are here at five minutes to 11 discussing what the noble Earl has himself said are complicated matters which need adequate time to be dealt with.

§
However, having said that, I do not propose to take up any more of noble Lords' time, especially at this advanced hour and I beg leave to withdraw my amendment.

§
. In Chapter I of Part I of the Copyright, Designs and Patents Act 1988 (subsistence, ownership and duration of copyright), there shall be inserted after section 6(3)—
(3A) It is hereby declared that a person shall not be regarded as having any responsibility for the contents of a programme for the purposes of subsection (3) (a) by reason only that he transmits the programme in the course of the provision of a service consisting in the conveyance by means of a telecommunication system of anything falling within paragraphs (a) to (d) of section4(1) of the Telecommunications Act 1984 (meaning of "telecommunication system".).").

§
The noble Earl said: My Lords, I must apologise to the House for tabling this amendment at a late stage and for explaining it in perhaps more detail than I would normally impose on the House at this late hour.

§
The problem arises under Section 6 of the Copyright, Designs and Patents Act 1988. That section defines the meaning of "broadcast" and related expressions for the purposes of the Act. Among other things, it defines who is the person who is to be treated as broadcasting a copyright work. Under subsection (3), the persons who are to be so treated are, first, the person transmitting the programme, if he has responsibility to any extent for its contents; and, secondly, any person providing the programme who makes, with the person transmitting it, the arrangements necessary for its transmission. Thus, for example, in the ITV network both the IBA and the individual ITV companies are treated as broadcasters. The problem arises where persons other than the IBA transmit the programmes, and it is necessary to determine whether they have the responsibility to any extent for their contents.

§
An account of the purpose of subsection (3) of the 1988 Act was given by the Minister in another place, Mr. Butcher, when it was being considered as a Bill in Committee in another place. It is apparent that "responsibility" was intended to mean legal responsibility, and although Mr. Butcher did not explain what he meant by that, it seems unlikely that he had anything other than the IBA's duties under the Broadcasting Act in mind. At all events, at col. 48 of the Committee proceedings he said that the purpose of the "responsibility" test was,
to ensure that common carriers such as British Telecom, who operate radio or television transmission services but have no legal responsibility for contents, are excluded".

§
The Broadcasting Act 1981 is not the only Act under which legal responsibility for the content of programmes may arise. In particular, it is an offence under the Wireless Telegraphy Act 1949 to transmit unacceptable material. I shall not go into the details of that. The regulations do not apply to British Telecom, although they apply to certain new entrants into the market for transmission services. That is where the mischief arises.

§
In 1988, to bring about effective competition to British Telecom and to encourage the development of new satellite-based telecommunications services, the DTI announced that it would award licences to six operators to provide specialised satellite services within the UK. That enabled them to operate satellite uplinks carrying a wide range of services ranging from private business communications to broadcasts.

§
The problem is that, unlike British Telecom, the operators of the uplinks who transmit the programmes will be subject to the regulations under the 1949 Act, and may therefore be treated as broadcasters for copyright purposes even though they may act merely as common carriers in uplinking the programmes to the satellites. Judging from what the honourable
838
gentleman, Mr. Butcher, said in another place, that is not the intention but it may be the effect of Section 6(3) of the 1988 Act.

§
If the operators, commonly known as specialised satellite service operators, or SSSOs for short, were treated for copyright purposes as broadcasting the services that they carry, they would be jointly, or perhaps severally, liable with the service provider for copyright infringement. That would lead not only to administrative inconveniences but in practice would produce one real hazard for the SSSOs—that is, the possibility of infringement claims when a service provider, especially a film channel, got into financial difficulties. If the copyright proprietors could pursue claims against the SSSO, which no doubt they would do if the service provider had insufficient assets and there were an arguable case under Section 6(3), the SSSO would be in great difficulties.

§
Subjecting the SSSOs to that kind of hazard would appear not only to be contrary to Government policy but also to introduce an element of discrimination into the market if the provision applied to SSSOs and not to British Telecom. The amendment is designed to remove the risk of Section 6(3) being construed in that way.

§
The amendment I place before your Lordships declares in effect that a person is not to be treated as "responsible" for the purposes of Section 6(3) if all he does is to transmit the programme in the course of a common carrier business. I submit that it would be in the public interest if a brief clarificatory amendment to the legislation to that effect were adopted. I beg to move.

My Lords, I have to tell my noble friend that the amendment is both irrelevant to the Broadcasting Bill and unnecessary in copyright legislation. The amendment is concerned with the definition of "broadcast" for the purposes of copyright legislation and not this Bill. I do not think it would be appropriate to amend copyright legislation here.

As I understand it, the fear is that a broadcaster who buys time on, say, a satellite transponder may go into liquidation having failed to pay copyright royalities in respect of his programmes. It is said that the copyright owners would then turn to those who merely provide the service of transmitting the signal to get their money and that such satellite operators could find themselves caught by the definition in the Act and be regarded as a broadcaster.

My noble friend Lord Stockton took an active part in our debates on the Copyright, Designs and Patents Bill and he may recall that the wording of what is now Section 3 was amended, albeit in another place, to avoid just this possibility and to remove liability for copyright infringement from those whose only involvement in the broadcast is the transmission of the signal. It may be that in other legislation the person transmitting the signal is responsible for its contents; but if that is the full extent of his involvement he is not under copyright law.

839
The amendment may be regarded as an avoidance of doubt provision. I would say the amendment introduces doubt where none currently exists. Section 178 of the 1988 Act already contains definitions of "wireless telegraphy" and "telecommunications sys-tem" and this is without reference to the Wireless Telegraphy Act 1949 or the Telecommunications Act 1984. The definitions in the 1988 Act are not coterminous with those in the 1949 and 1984 Acts and the introduction of a wider definition into Section 6 would cause many difficulties.

The introduction of a reference to the Telecommunications Act would apply the provisions of Section 6 to matters not considered to be a broadcast, which is limited to wireless telegraphy. It would affect references to telecommunications systems elsewhere in the Act, most notably in Section 7 dealing with cable transmission. There are doubtless other knock-on effects which we have not had time to identify.

In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.

The Earl of Stockton

My Lords, I thank my noble friend the Minister for his reply. I shall read it in detail in the Official Report and may come back to the matter at the next stage. Pending that possibility I beg leave to withdraw the amendment.

§
When we discussed the question of needle time at Committee stage my noble friend Lord Sanderson said that we would look into certain matters and return with amendments on Report. My amendments fulfil that commitment. They fall into three groups. In discussing them, it will also be convenient to consider the amendments standing in the name of my noble friends Lord Colwyn and Lord Jenkin of Roding.

§
At Committee stage my noble friend Lord Colwyn argued that the clause should be amended to prevent a licensing body proposing a needle time restriction except on request. There was an undeniable logic behind his amendment but, as was indicated at the time, the amendment could have had the undesirable consequence of preventing a licensing body publishing a tariff for various levels of needle time. Amendments Nos. 341 to 347 and 350 will, I trust, meet the concerns of my noble friend without deterring the publication of tariffs and transparency of licensing. The effect of these amendments, some of which are drafting matters, is that the statutory licence is available if a licensing body proposes a licence or licensing scheme which does not provide for unlimited needle time.

§
The next issue in my group of amendments concerns the question of costs when a case goes to a tribunal. The clause presently provides for costs to be awarded against the licensee only. My noble friend Lord Sanderson accepted in Committee that that did not provide the right balance. Amendments Nos. 348 and 349 put this right. The tribunal will be able to award costs against either party under the powers given it by Section 151 of the Copyright, Designs and Patents Act 1988.

§
It may be convenient to consider Amendments Nos. 342A and 346A which stand in the name of my noble friend Lord Colwyn. Amendment No. 342A would make it explicit to the order of the copyright tribunal referred to as one which is made under Section 135D. As the clause currently stands, if a broadcaster is offered a licence which is satisfactory to him in every respect, except in respect of the rate which is payable, and that rate is the one determined by the copyright tribunal under the existing law, the broadcaster cannot have recourse to the statutory licence. He must refer the matter to the tribunal in the ordinary way.

§
My noble friend's amendment would mean that the broadcaster could have the benefit of the statutory licence in these circumstances pending a tribunal decision under Section 135D. I am bound to tell my noble friend that we see merit in this but we should like to pause before accepting the amendment to allow any contrary arguments to be assessed. However, at present I am minded to accept the amendment in principle. If my noble friend will withdraw his amendment, we shall return at Third Reading with an amendment to meet this point.

§
Amendment No. 346A refers to Clause 174 which, as drafted, allows the person exercising the statutory licence to comply with any reasonable condition notified by the licensing body: indeed, he has to comply with it. My noble friend's amendment would restrict the scope of conditions which the licensing body may seek to impose to those relating to conditions intended to prevent or deter unauthorised home taping of sound recordings.

§
I do not think it would be right to limit the licensing body in this way. It is undoubtedly the case that, in its report, the Monopolies and Mergers Commission said that the user should comply with any code of conduct approved by PPL for the purpose of preventing unauthorised copying. But I find it difficult to imagine that the MMC thought that the broadcaster should not be subject to reasonable conditions. No one would argue, least of all my noble friend, that broadcasters should be given a licence to behave unreasonably with the PPL.

§
To take an example, it seems to the Government that it would be reasonable for PPL to require the broadcaster to desist from associating a particular sound recording or recordings with a product or service being advertised on the radio station. If my noble friend's amendment were accepted, that would not be possible and the licensing body would be left without remedy if a radio station were to behave in this untoward fashion.

§
The fear of the radio stations is, I believe, less with the condition per se but the fact that an injunctive right remains in place to enforce them. But I think this fear is misplaced. First, the broadcaster is only required to observe reasonable conditions. He can challenge the reasonableness of any condition before the tribunal under Section 135E. Secondly, if he fails to observe a condition because he believes it to be unreasonable, he may feel at risk until the tribunal arbitrates. The very worst that could happen would be that the court would grant PPL an injunction to require the broadcaster to observe an unreasonable condition until the tribunal decision. I think your Lordships will agree it is most improbable that PPL would ever obtain an injunction to enforce an unreasonable condition.

§
But to accept my noble friend's amendment would deprive the licensing body of the possibility, except in one limited area, of protecting their interests against unreasonable behaviour. In my view, this would tip the balance unfairly in favour of the broadcasters.

§
I turn now to the most important of the subjects addressed by this group of amendments; namely, the criteria to be considered by the copyright tribunal in reaching its decisions on the royalty to be paid for any given amount of needle time. As your Lordships may know, the tribunal, in its previous incarnation as the performing right tribunal, has made an order relating to the broadcasting of sound recordings, and set a royalty rate. This was at a time when there was a needle time limit of nine hours.

§
It has been put to us that the tribunal, in assuming rates under the new legislation, might simply look at its earlier decision as it related to nine hours' needle time and simply extrapolate, to determine a rate for extra hours. We think it unlikely that the tribunal would adopt such a simplistic approach. Nevertheless, we want to be sure that the tribunal comes to consider these matters afresh, not bound by previous decisions. Amendment No. 351 will achieve this. Subsection (2) of new Section 135G requires that the tribunal shall not be guided by orders made under the old legislation. The parties, and the tribunal, start with a clean sheet. In the event of dispute, both parties must produce their evidence and the tribunal must assess it on its merits, without regard to what it decided under the old law.

§
I wish to make it clear that my amendment is not intended to prevent the tribunal from reconsidering evidence brought before its predecessor, the performing right tribunal. Nor is it to be precluded from considering any precedents that the parties in any dispute may wish to cite. My amendment simply ensures that the tribunal is not guided by rates set at a time when the statutory licence was not available, but determines the matter afresh. That appears to be the sense of Amendment No. 351ZB in the name of my noble friend Lord Jenkin. I believe my amendment gives him what he wants but I am prepared to confirm this with parliamentary counsel and return with clarifying amendments if need be.

§
Amendment No. 351ZA, standing in the name of my noble friend Lord Colwyn, would go further and would require the tribunal to disregard all rates paid under licences or licence schemes operating under needletime restrictions. This would be going too far. Existing licences and licensing schemes not referred to the tribunal must be taken to have been voluntarily entered into by the parties concerned. They could be referred to the tribunal at any time. The fact that a user did not refer the rate would suggest that he was content.

§
In setting a rate for any copyright licence it is clearly very helpful to the tribunal to see what is the market rate for comparable licences agreed voluntarily between copyright owners and licensees before it imposes a rate on a licensing body and licensee which may be in dispute. It will be said that the licences which are agreed under the regime of needletime restrictions were scarcely voluntary and that they were imposed by PPL abusing its monopoly position; and it will be open to the broadcasters to argue this before the tribunal.

§
It seems that the independent radio stations, whose case has been so eloquently argued by my noble friend Lord Colwyn on various occasions during the passage of the Bill, could be disadvantaged by the amendment. It would mean that the tribunal could not be guided by rates which are favourable to the independent radio contractors if the relevant licence included a needletime limit. That would apply to such licences as the BBC's and certain foreign agreements whose rates are said by AIRC to be lower than their own. The tribunal is best placed to consider all the factors and to decide what weight to attach to the various arguments. But it will be placed in a difficult position if it is denied any kind of benchmark against which to assess, in the light of the evidence and the changed circumstances of the new legislation, what is an appropriate royalty. I hope that the noble Lord will consider his amendment and may feel able to withdraw it.

§
I realise that I have spoken at some length on a complicated matter, which is not a very popular thing to do at this hour of the night. It is important, and even if it may not have been all that easy for noble Lords to have imbibed straight away, no doubt they will have the privilege and pleasure of reading it in Hansard where its purpose and various implications may become more apparent. I beg to move.

My Lords, my noble friend indicated that the most significant issue dealt with in this group of amendments is the relevance of previous decisions by licensing authorities to any proceedings for a statutory licence. My noble friend has gone a very long way to meet the case. As drawn, the subsection was open to misinterpretation in that it effectively sterilised the whole of the previous history surrounding these businesses. This is what has been feared. My noble friend has made clear that it is the Government's intention that the only matter which the tribunal is precluded from considering and being influenced by is the actual amount of payment. That is precisely the point that my amendment was
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intended to secure. My noble friend has been kind enough to say that he is prepared to look again at the drafting. In those circumstances, therefore, I have no intention of moving my amendment.

I turn now to Amendment No. 342A, to which my noble friend Lord Colwyn will wish to speak. If indeed it is the intention of the subsection to which I referred a moment ago that this should be restricted only to the question of the actual payment under previous proceedings, what is proposed in this amendment (which) my noble friend indicated the Government may be prepared to accept in substance, although it would require redrafting) may be acceptable to the licensing authority.

My Lords, I am extremely grateful for all that my noble friend the Minister has said. However, before I begin, I must declare an interest as I am a non-executive director of Jazz FM. I look forward to reading my noble friend's remarks in Hansard tomorrow because they are of immense importance to all the amendments tabled in my name. He suggested that we put forward the arguments and I shall therefore spend two or three minutes in outlining the arguments in favour of my amendments.

As I said at the Committee stage, the matters covered by these amendments are complex and I believe that the House will share with me an unwillingness to be regaled with these complexities yet again. I should remind your Lordships that the details of these arguments concerning the rights of monopoly licensing bodies have been exhaustively considered by the Monopolies and Mergers Commission, and by the Government in consultation with interested parties and indeed on the Floors of both Houses of Parliament. In moving these amendments, I find myself in something of a curious position in that the case made by the broadcasting industry, upon which these amendments are based, has already been accepted by the Government. Indeed the wording of my amendment, Amendment No. 346A, was actually based on the wording recommended by the Government.

I Should like to speak briefly to my amendment, to the Government amendment, Amendment No. 351ZA, and then briefly cover my two other amendments, Amendments Nos. 342A and 346A, which are also concerned with Clause 174. Noble Lords may recall that when these matters first came before your Lordships' House I argued, with a good measure of support from all sides of the House, that, as the Monopolies and Mergers Commission had condemned and called for the abolition of PPL's practice of imposing needletime restrictions, it would have been wrong for there to have been a device in this Bill by which the PPL could have abolished the needletime restriction and then subsequently claimed compensation by way of increased royalty rates. If this had been allowed, it would have provided a bounty to record companies solely for stopping an abuser of the British broadcasting industry—something which your Lordships would wish to prevent.

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The Government recognised these dangers and agreed to put forward amendments that would oblige the copyright tribunal to disregard the previous existence of needletime restrictions as having been relevant to the rates charged at the time. The measure was intended to block the possibility of any price increase resulting from the abolition of needletime. This process has now become known as extrapolation and should have been prohibited by the government amendments.

I warmly welcome the government amendment, but am concerned that it makes no specific mention of needletime and contains a serious loophole in that it only calls for the tribunal not to be guided by previous tribunal orders thus, by omission, conferring a relevance upon previous needletime contaminated licences that were not the subject of a tribunal order. I have sought to clarify the matter by adding to the Government's amendment in a way that I hope the Minister will recognise as being a correct and honest interpretation of the Government's aim and undertakings in this matter.

Amendment No. 346A is altogether more straightforward. The Monopolies and Mergers Commission concluded that, as a price of its monopoly, the PPL should be relieved of its injunctive rights. Therefore, upon an application by a broadcaster for a statutory licence, it should be entitled to broadcast on the basis of self-assessed royalties—free from the threat of an injunction until the tribunal had settled the dispute. However, the commission considered activity designed to induce home taping to be unacceptable and therefore recommended that qualification for a statutory licence should depend on compliance with conditions designed to prevent such home taping.

An acceptance by the Government of this most specific requirement resulted in a preferred form of wording being suggested by the DTI which is now the exact wording of my amendment. Unfortunately, as it stands, the Government's amendment contains no mention of home taping and requires compliance with any—I repeat the word "any"—reasonable conditions. Surely any conditions should be tested by a tribunal before being imposed upon a broadcaster under threat of injunction. Therefore the clause, as it stands, is inconsistent with the MMC recommendations and even with the Government's own understanding and suggested treatment.

The argument has been put forward that as the Government are engaged in the limitation of property rights, they should do so only with sufficient justification. I must point out that such justification was sought from the MMC and was received in the form of its report of December 1988. The wording of its recommendations leaves no room for misunderstanding and moreover I must also stress that the rights of individual copyright owners are not affected by the amendments. It is solely the position of rights exercised collectively that is being restricted, something from which the House seldom shrinks when faced with conclusive evidence such as has been provided by the MMC.

845
The House would naturally have a concern for the rights of individuals in those matters, and I am assured that the rights of individual copyright owners, including those of injunction, could be exercised to the full simply by withdrawing from the monopoly licensing body concerned.

Finally, Amendment No. 342A proposes wording that would clearly show that, when a broadcaster evokes a statutory licence, one of the conditions that might prevail is one which concerns compliance with an order of the tribunal and that the order referred to means an order made under the new provisions of the Bill—not orders made under the old system. I am advised by greater legal minds than mine that the current wording leaves room for misunderstanding and therefore I hope my amendment will be acceptable as a point of clarification.

The honouring of commitments made to the House and elsewhere, together with the weight of supporting argument, should make all three of my amendments entirely consistent with Government policy. However, in view of what my noble friend the Minister has said, it is not my intention to move the amendments this evening. I shall continue to hear the arguments as they are put forward.

My Lords, first, with reference to Amendment No. 342A, I am glad that the Minister has so far resisted it, but it would be premature for me to comment further upon it, save to say that I am concerned in the light of the statement he made tonight, which I shall have to consider.

Before I go any further I should declare an interest in this matter because I am a consultant with a firm of solicitors, S. & J. Burwen & Co., which has been consulted over a period of years now by the BPI.

In relation to Amendment No. 346A, I am pleased that the Minister thought it inappropriate that that matter should be proceeded with, and evidently it will not be. The same applies to Amendment No. 351ZA. I am pleased too that the Minister was able to accept the amendment tabled by the noble Lord, Lord Jenkin of Roding, in relation to Amendment No. 351, which is the critical amendment so far on these issues. Some of the mischief—as I would see it—that that amendment imports has been mitigated, but not wholly.

I hope that the Minister will be able to give me some reasonable replies to the questions I asked. I support the view expressed earlier by the noble Lord, Lord Lloyd of Hampstead, which was in a sense echoed by what the Minister said: that these are important matters. He apologised for the fact that they were being debated so late at night. They are complex matters. That is a criticism of the Government. It is no one else's fault. The Government have chosen to introduce Amendment No. 351 late in the day. I am not now referring to the lateness of the hour. It is wrong that that should have been done, because the matter is important.

I am advised that the amendments were not the subject of any prior consultation with the BPI or any
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other part of the recording industry. I hope the Minister can say why that was the case. It is extremely unusual, is it not, for that situation to prevail? After all, the Government have consulted previously and in this case, for some reason best known to themselves, although the recording industry has had very close relations with the Department of Trade and Industry, I am advised that no consultation has taken place. No doubt the Minister will be able to take instructions on that point because that is very serious and disturbing indeed. I hope that in all future cases the opinion of the industry will be sought before changes are discussed.

The industry is of enormous importance to this country. In 1989 it had sales of a net worth of something like £2,500 million and there are 25,000 people employed in it. It stands very high in the world ratings. Its invisible earnings were worth well over £1 billion in 1988. It is contended by the industry that Clause 174 and the amendment in particular have the effect of diminishing the protection which it has felt to be of considerable value in its dealings across the world.

If the United Kingdom substantially downgrades the protection which it gives to sound recordings, there is a danger that the rest of the world will follow to the detriment of the industry as a whole.

I believe that I should leave the matter there particularly at this stage although I should have liked to have said more. I know that the damage cannot be rectified now. The Government are set upon pursuing this amendment, but at the very least the Minister might make an apology to the industry and undertake that it should be properly consulted on all future occasions.

My Lords, like the noble Lord, Lord Jenkin, I was very worried by Amendment No. 351 because it seemed to me to place unwarranted restrictions on a tribunal which, after all, in Section 135G, is supposed to consider the matter and make such order as it may determine is reasonable in all the circumstances. That is an all-embracing provision which seems to me to be entirely sensible.

Indeed I thought that the original amendment in the name of the noble Earl was wiping the tape with a vengeance. Surely any tribunal should be able to consider history in some shape or form. Therefore, I was very relieved to hear the noble Earl make some promises to the noble Lord, Lord Jenkin, about considering his amendment and perhaps incorporating it in some way at a later stage. I am very reassured by that.

I was rather surprised to hear the noble Lord, Lord Colwyn, reassure the House that none of this affected the performers or the people in the middle. It is true that behind these amendments stands a history of debate and squabble even between broadcasting organisations and record companies. Of course, it is tempting to believe that it is rich broadcasters fighting rich record producers. Sooner or later, whatever the technicalities, in the middle are the performers, who may very well not be rich. The returns which come to
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them should concern us more than anything else. There fore, I was very relieved to hear what the noble Earl said about the various amendments and I shall look Forward with great interest to Third Reading.

Earl Ferrers

My Lords, I am glad that my noble friends Lord Jenkin and Lord Colwyn and the noble Lord. Lord Birkett, felt reassured by much that I said. I daresay that some of your Lordships who are not deeply familiar with the intricacies of the subject matter which we are now considering might have obtained an equally clear understanding of the debate had it been conducted in ancient Greek. I accept that this is a complicated matter. The noble Lord, Lord Clinton-Davis, castigated me slightly when he said that was the fault of the Government because the amendments had been tabled late and there had been no consultation. Throughout the whole of the Bill we have tried to consult as much as possible. We have tried to take into account all the criticisms that have been made, and I think most noble Lords would agree that we have amended the Bill substantially to take account of those criticisms.

It is perfectly true that my noble friend Lord Sanderson made a clear statement of the Government's intentions in Committee and we then tabled these amendments. They have been on the list since 28th September. People who are concerned about this matter have therefore had plenty of time to make their representations.

I hope in the light of what I have said, your Lordships will feel minded to accept the Government amendments. I have given an undertaking that we shall certainly consider the remarks which have been made and consider to what extent—I can put it no higher than that—if any, we can meet any of the points which have been made. Your Lordships will realise that we are up against a time limit, and the noble Lord, Lord Clinton-Davis, might care to blame the Government for that. However, he will realise the practical difficulties that that poses. As I have said, I shall ensure that the points are considered without commitment.

My Lords, before the noble Earl sits down, will be indicate whether the recording industry was consulted at all, most particularly by the Home Office, since the time the amendments were tabled? Is he also aware that attempts were made to consult Ministers, but nothing came of that?

Earl Ferrers

My Lords, I am not familiar with those details, nor am I familiar with the fact that attempts were made to speak with Ministers but the Ministers did not make themselves available for meetings. So far as I know, no one tried to contact me. Had they done so, I would have been content to meet them. I realise that a noble Lord is trying to intervene.

My Lords, before my noble friend sits down, he may care to remind the House that when I, on behalf of the recording industry, sought an interview, I had no difficulty whatever in obtaining a
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meeting with Mr Douglas Hogg. I kept my noble friend informed of that contact by sending him copies of the correspondence.

Earl Ferrers

My Lords, with the leave of the House, I should say that I am grateful to my noble friend for refreshing my memory of that incident. Those comments serve to refresh my memory further. I recall that I also had meetings with my noble friend Lord Colwyn and others whose names I cannot recall. However, there were a number of them. The noble Lord, Lord Clinton-Davis, was not among them. However, if he is being fair, he will accept that he did not ask to see me about this matter.

("(b) allowing unlimited needletime or such needletime as he has demanded.").

Page 136, line 44, leave out ("as to needletime that would be acceptable to him") and insert ("allowing unlimited needletime or such needletime as he has demanded").Page 137, line 3, leave out from ("substitute") to ("terms") in line 4 and insert ("or procure the substitution of").Page 137, line 39, leave out ("Copyright").

§Earl Ferrers moved Amendments Nos. 347 to 351:
Page 137, line 49, leave out ("sound").Page 138, line 31, leave out from ("circumstances") to end of line 38.Page 139, leave out lines 13 and 14.Page 139, line 20, at beginning insert ("Copyright"). Page 139, leave out lines 38 to 41 and insert:

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135G.—(1) In determining what is reasonable on an application or reference under section 135D or 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall—

(a) have regard to the terms of any orders which it has made in the case of persons in similar circumstances exercising the right conferred by section 135C, and

(b) exercise its powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body.

§
(2) In settling the terms of payment under section 135D, the Tribunal shall not be guided by any order it has made under any enactment other than that section.

§
(3) Section 134 (factors to be taken into account: retransmissions) applies on an application or reference under sections 135D to 135F as it applies on an application or reference relating to a licence.").

§
"(5) References in this Chapter so far as regards broadcasting to "the operator" shall, if appropriate, include any operator of a scheme of which there is more than one operator."

§
(3) The following sub-paragraph is added after subparagraph (iii) of sections 117(a) and 124(a)—

"(iv) issuing copies of the work broadcast to the public;".").

§
The noble Lord said: My Lords, I can be very brief. The first part of the amendment is directed towards the issue which has emerged during the British Phonographic Industry's tribunal hearing with the Mechanical-Copyright Protection Society, the MCPS. There appears to be some confusion as to whether or not the MCPS may be classified as an operator of the scheme, of which there is more than one operator, or whether only schemes with one operator are licensing schemes within the meaning of the Copyright, Designs and Patents Act 1988. In my submission, the proposed amendment to Section 116 of that Act would clarify the position and define the role of the operator much more satisfactorily.

§
The second part of the amendment is prompted by a further problem which emerged during the hearing to which I have referred at the Copyright Tribunal. It would appear from the discussion so far that the jurisdiction of the tribunal may not extend to the issuing of copies of the work to the public. The MCPS alleged that the 1988 Act makes it necessary for record companies to obtain two licences, one for copying and the other for the issue of records to the public. It is claimed by the MCPS that that second licence, which is by far the more important to the record companies from the commercial point of view, is not subject to the jurisdiction of the Copyright Tribunal. Technically that means that the Copyright Tribunal can review the terms of the MCPS licences in so far as they relate to copying but not in so far as they relate to distribution. That makes something of a nonsense of the current litigation and would severely prejudice the commercial interests of the BPI. I beg to move.

Earl Ferrers

My Lords, I must confess that when we first saw the amendment we could see little connection with broadcasting or the subject matter of the Bill. The noble Lord's revision of the amendment has made it more relevant to the Bill, but I am afraid that it has not made it one that I can accept.

There are two main points. The first is that it is suggested that the legislation should recognise that there may be more than one operator of a licensing scheme. If the noble Lord's amendment merely restates the rule of the Interpretation Act, which provides that the singular includes the plural unless the contrary intention appears, then the amendment states the obvious and, I suggest, is unnecessary. However, we find the notion of a scheme with more than one operator a difficult concept to accept. Each
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scheme can only have a single operator. For a scheme to have more than one operator could be a recipe for things to go wrong.

The second point concerns the lack of tribunal jurisdiction over the restricted act of issuing copies of the work to the public. That right is conferred on the copyright's owner by Section 18 of the 1988 Act. The noble Lord has made an attempt to bring the amendment within the scope of the Bill by referring to the issue of copies of the "work broadcast to the public". I fear that it introduces obscurities and would create a very artificial dividing line between areas covered by tribunal jurisdiction and those that are not.

I hope that what I have said may be sufficient to enable the noble Lord to consider the matter in a little more detail and to withdraw his amendment.

My Lords, as for the penultimate paragraph, I shall try to use the same words, but as I spoke ad libitum it may not be quite so easy to produce exactly the same words as before. The second point to which I referred was about the lack of tribunal jurisdiction over the restricted act of issuing copies of the work to the public. That right is conferred on the copyright owner by Section 18 of the 1988 Act.

I suggested that the noble Lord made a valiant attempt to bring his amendment within the scope of the Bill by referring to the issue of copies of the work broadcast to the public. But I said that I feared that his amendment introduced obscurities and would create a very artificial dividing line between the areas covered by the tribunal jurisdiction and those that are not.

I hope that I gave as nearly accurate a description the second time that I referred to the problem as I did the first time.

My Lords, I am much obliged to the noble Earl. Frankly, I am as unimpressed with the arguments that he adduced in the penultimate paragraph as with those in the ultimate paragraph. But having said that, I shall read very carefully what he said. In the circumstances I beg leave to withdraw the amendment.

§
The noble Earl said: My Lords, for the convenience of your Lordships' House in moving this amendment I should also like to speak to Amendments Nos. 352, 355 and 357A which also stand in my name and
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Amendment No. 358. The two amendments in my name cover two slightly differing points around the same issue. The first is that it is the intention of the Home Office that a publisher should be allowed to appoint a nominee for the purposes of publishing TV listings. But as with so many clauses in the Bill, what the Home Office intend and what is in the Bill do not necessarily seem to correspond. This amendment would allow the Minister an opportunity to clarify the position of listing bureaux.

§
The regular and daily press need to be able to require copyright holders to supply either the publisher direct or the publisher's nominee. It is current practice for the Press Association to compile TV and radio listings from data supplied by all the broadcasters. Those are then sent via land line or satellite to every national newspaper and to all but two regional dailies and Sundays. Some 55 of those use the Press Association directly in their publications and another 30 or 40 take a customised version direct to page. Considerable savings are made on the cost of each newspaper having to compile its own listings. Another 10 newspapers take a similar service from a competitor company.

§
The Press Association is well used to handling others' copyright material, adding value, transmitting it to the newspaper industry and collecting both the licence fee for the copyright data and, if necessary, additional fees.

§
Under Clause 175(1) at present there is no obligation on the broadcasters to supply such agencies. Newspapers fear that they will be obliged either to carry the expense of compiling the listings themselves or to subscribe to the bureau service being offered by the BBC itself. The Bill as put would enable broadcasters to deny publishers the opportunity of choosing a service from a competitive market place, which is precisely what they are able to do at the moment.

§
Turning to the other issue, the Government announced on 4th June that publishers should be allowed to publish the listings on 1st March 1991. The Home Office therefore intends to bring the section on programme listings into force on 1st January 1991, with a proviso that nobody can publish until the later date. In practice two months is not a long time in which to negotiate complex licence fees. My main worry is that the existing publishers may claim that two months is not a reasonable time in which to settle a licence fee and that they could serve an injunction and prevent a rival publisher from publishing on 1st March.

§
This amendment has been suggested by the Home Office, which agrees that the publishers and the broadcasters should be encouraged to start negotiating as soon as possible after Royal Assent. It is my hope that my noble friend the Minister will have an opportunity to express the Government's intention that parties should start to negotiate before 1st January 1991. It would put many minds at rest if the Government were able to assure us that a "reasonable
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time" should mean two months in this instance and that negotiation should start after Royal Assent. I beg to move.

My Lords, the amendment which my noble friend has moved is connected with Amendments Nos. 352 to 355, 357A and 358. My Amendments Nos. 354 and 355 modify the table in Clause 175 to cover the interim period. The other amendments to Clause 175 are essentially drafting improvements. My amendment to Schedule 15 removes paragraph 5(b) of that schedule, which gave the copyright tribunal power to award costs against a listings publisher who had set a less than reasonable figure for payment of the broadcaster. Its removal ensures that both publisher and broadcaster can be treated equally by the copyright tribunal in terms of cost.

My noble friend's Amendment No. 357A is, I believe, intended to ensure that where a publisher served a notice on a broadcaster on 1st January 1991 that he intended to publish listings information if no agreement had been reached between the licensee and the licensor the publisher should be in a position to publish information on 1st March 1991. I certainly accept the spirit of my noble friend's amendment, but I cannot accept the amendment because it is technically defective. For example, as drafted it is not clear whether the provision refers to the publishers serving notice on the copyright tribunal or on the broadcaster himself.

It would be difficult to include a provision of this type in the Bill. But perhaps I may set out the way we see things working. The Government have made clear that their policy intention is that publishers should be in a position to publish TV listings information from 1st March 1991. We are currently considering how best to give effect to that intention. Our present view is that we shall implement Clause 175 and Schedule 15, both of which relate to TV listings information, on 1st January 1991. We shall make clear in the commencement order that broadcasters would not be obliged to provide information relating to any programmes that they intended to broadcast before 1st March 1991.

Accordingly, on 1st January 1991 publishers would be able to give notice under paragraph 3(1)(a) of Schedule 15 to a broadcaster of their intention to publish listings information. I would hope that negotiations could be completed to mutual satisfaction in order for publishers to be in a position to publish by 1st March 1991. But if that were not to happen, I believe that a publisher who had not received proposed terms from the broadcaster, or who was dissatisfied with those terms at the end of January 1991, would be deemed to have waited a reasonable period of time, as is required in paragraph 3(1)(b). He could at that stage serve notice on the broadcaster and the copyright tribunal simultaneously of his intention to begin publication on 1st March. The one-month period of notice which this would entail could also be regarded as the reasonable period specified in paragraph 3(1)(b).

853
I would hope that broadcasters would be amenable to approaches from publishers before 1st January 1991. Although the statutory provisions themselves would not be in place, I would hope that broadcasters would not seek to be obstructive in entering into preliminary negotiations with publishers.

Amendment No. 351C in the name of my noble friend is similarly defective. It would imply that the nominated agent would himself wish to publish information in the United Kingdom. I understand what the amendment is intended to achieve. It is that where a publisher made a direct contractual arrangement with a broadcaster he could ask that the listings information be supplied to a nominated agent. I hope that I can set my noble friend's mind at rest on that.

The intention of Clause 175 is to ensure that there is a direct contractual relationship between the broadcaster and the person who intends to publish the information. But there is nothing to stop the publisher from nominating a person to receive the information on his behalf and to tailor it for his purposes. Provided that it was quite clear that the agency acting in this way could use the information only for the purposes of those publishers who had contractual relationships with broadcasters there would be no difficulty. Indeed such an arrangement is likely to be in the commercial interests both of broadcasters and of the publishers. Broadcasters might find that they would have to send information to a far smaller number of outlets and the publishers would benefit by having information which would be tailored to their own requirements. I hope that I have been able to set my noble friend's mind at rest regarding his anxieties.

The Earl of Stockton

My Lords, I thank my noble friend for the reassurance and apologise for the flaws in my drafting technique. I beg leave to withdraw the amendment.

§
.—(1) Subject to the provisions of this section and of section (Rights in formats: supplementary), the owner of the
854
rights in a format which amounts to an original format shall have the same rights and remedies against a person who copies or includes in a broadcast or cable programme a substantial part of that format as he would have if the format were a literary or dramatic work and he were the owner of copyright in it; and accordingly the provisions of Part I of the 1988 Act shall apply in relation to the rights in formats conferred by this section as they apply in relation to copyright in literary or dramatic works.

§
(2) For the purposes of this section and of the provisions of Part I of the 1988 Act in their application to formats, "copying", in relation to a format, means making another format with format features which (taken together) substantially reproduce those of the first mentioned format; and a combination of format features may be taken substantially to reproduce another such combination even if some or all of the features have been translated into a different language or have been modified to suit a different society.

(a) shall expire at the end of the period of 25 years from the end of the year in which the author dies, and for all other purposes of determining whether the owner of those rights has any cause of action references in the 1988 Act to any period of 50, 75 or 100 years shall be treated as being references respectively to a period of 25, 50 or 75 years;

(b) are transmissible by assignment, by testamentary disposition or by operation of law as personal or moveable property in the same way as copyright.

§
(4) Sections 159 and 160 of the 1988 Act (which enable provision to be made by Order in Council applying provisions of Part I of that Act to countries to which that Part does not extend or restricting the rights conferred by that Part in relation to works of authors connected with countries not giving adequate protection to British works) shall apply in relation to the provisions of this section and section (Rights in formats: supplementary) as they apply in relation to the provisions of that Part.

§
(5) Nothing in this section shall affect any copyright or any other right in the work in which the format is first recorded, whether it is so recorded in writing or otherwise.

§
(6) The rights conferred by this section shall apply in relation to formats whether made before or after this section comes into force; but no act done before this section comes into force shall be actionable by virtue of this section.").

§
The noble Lord said: My Lords, I make no apology about the lateness of the hour because it is not my fault or that of your Lordships; it is the fault of the Government. I must make a mild protest because this is an important Bill. It should not be debated at this hour of night and I do not see why the Government could not have conceded a fourth day for the Report stage. I shall speak also to Amendment No. 357ZA.

§
The matter was debated in Committee and the Government promised to look at it again. I am grateful for the care and consideration that the noble Earl, Lord Ferrers, has given it. I cannot say as much for the DTI which, in considering the matter, made the cardinal mistake of referring it to the lawyers. Of course, they muddied the waters considerably. There is only one thing worse than referring matters to lawyers and that is referring them to an academic mafia. The result is that we received a negative reception from the Government; hence the reappearance of my amendment.

§
Perhaps I may remind the House as briefly as possible of the background. The situation arose through a case that happened in New Zealand. Mr. Hughie Green, the inventor and owner of a show
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called "Opportunity Knocks", was suddenly confronted by the Inland Revenue of this country and asked to pay tax in respect of his show that had been running in New Zealand for some time. He was completely ignorant of the fact and spent some months and a great deal of money trying to pursue the matter. He won the case in New Zealand but the New Zealand Broadcasting Corporation appealed to the Privy Council here which ruled against him on a number of grounds that I shall explain later.

§
I emphasise that Mr. Green did not demand a monopoly on the idea of a talent show. In fact, a number of talent shows existed alongside "Opportunity Knocks"; notably "New Faces". Mr. Green was happy with that situation. He took action only because the New Zealand producer stole his format, his method of presentation, the distinctive features that he had developed over many years and capped it all by using the title "Opportunity Knocks". When challenged in the courts and asked, "Have you stolen Mr. Green's show lock, stock and barrel?", the producer admitted it. That was a most brazen act of piracy.

§
The result of the Privy Council decision means that the question of the rights of ownership of quiz and game shows has been thrown into confusion. That may seem unimportant to many people. No one would argue that game shows are high art but, putting aside all snobbish considerations, there are three points that your Lordships should remember. First, such shows give innocent pleasure to millions of people. Secondly, they are relatively cheap to produce and therefore provide an indirect subsidy to more prestigious drama and documentary programmes. Thirdly, they often take years and considerable investment to develop, usually by the owners of small independent companies. Surely, these people have as much right to protection of their property as a film producer or a dramatist.

§
Perhaps I may give your Lordships an example of the problems that the Privy Council ruling has raised. Mr. Green asked for the dramatic format of his show to be protected. He cited several distinctive features which were his invention, such as a clapometer, the method of introducing and judging the contestants, certain questions and catch phrases which were a regular part of each show and other features which had been established, polished and worked at for many years. The Privy Council ruled that those features were not related to one another; were simply accessories; and had no dramatic unity and no strength.

§
On the basis of that ruling, what would happen to a show like "Mastermind"? It is basically a general knowledge quiz show. It cannot, by its very nature, have scripts. It has the black chair, the invited audience, the dramatic lighting, and a questionmaster who has certain well established catch phrases, just the same as "Opportunity Knocks". The Privy Council ruling means that "Mastermind" could be stolen tomorrow by anybody. All those features add up to no
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more than the permanent features invented by Mr Green for his show. That is clearly wrong, and the uncertainty should be removed.

§
The Government's objections to the amendment appear to fall into two categories. First, they take the view that the "Opportunity Knocks" case is a one-off — a kind of legal aberration. I take this to mean that the originators or owners of other game shows must, if necessary, face the same test in law as Mr. Green. If their property is stolen, they must sue in order to establish their rights. That does not offer much satisfaction to the people and companies who invested a great deal of money and time in the development of their shows. They are being asked to take an unacceptable risk: to work for months, even years, to develop a show and to put it on, and then it can be stolen. If it is stolen they have recourse to law. They have to test the law. I can tell your Lordships that it has cost Mr. Green a quarter of a million pounds to pursue his case through the New Zealand courts and over here, and he has lost.

§
Is any other person going to put their money on the line like that and take a risk in developing a new game show? Is it not true that by suggesting there could be similar cases the Government are implicitly admitting that there is a hole in the law? My question is: why not fill it now? Why put those producers at such risk?

§
The Government's second main argument appears to be that the amendment would create a monopoly in game shows. This is a horse that will not run. I have already indicated that there have been other talent shows to which Mr. Green did not object. I could sit down with the producers, and the noble Lord, Lord Harmar-Nicholls, and I could sit down together and produce half a dozen shows on themes similar to those on television at the moment. They would then take a lot of time and money to produce, but they would not infringe the copyright controls set out in my amendment. It is quite possible to develop a show like "Mastermind" but in a different way. In fact, I can give you an example.

§
There has been running on BBC an immensely popular show called "A Question of Sport", which is a fantastic show. ITV was a little jealous of this, so they developed a show called "Sporting Triangles", which is essentially a very similar show, but it has certain distinctive features which make it different from "A Question of Sport", and therefore it is safe. There is no question of suing, no question of monopoly. So I think that the idea that my amendment would create a monopoly in game show or quiz show ideas is nonsense.

§
What is left of the Government's arguments? They say that there has been no public debate on this issue and that there is no public concern. That may well be so, but I can tell your Lordships that there is great anxiety among broadcasters who are worried because they are putting money into these shows and they fear that they will lose them. They are operating now in a minefield with the danger of costly court actions exploding around them. Even if there is an absence of public anxiety, is that any reason for refusing to put right an obvious wrong?

§
The Government suggest that those shows, in certain circumstances, may find protection in patent law, trademark law, design law, copyright law, passing-off and the law of confidence. I only say that none of those was very helpful to Mr. Green, who lost his show and £250,000. I make the point I made earlier. By pointing producers in the direction of those protective laws, the Government are acknowledging that a danger exists. Why do they not take this opportunity to eliminate that danger?

§
The Government's advisers said that the most fundamental objection to the amendment is that it is impossible to establish with any degree of certainty what would be protected in any given situation. I know and the producers know what we want protected: we want game shows and quiz shows to be afforded the protection which we innocently thought they had before the ruling of the Privy Council. The Government were quite happy with the situation before that time. There was no talk of monopoly or court cases. If the Government have reservations regarding the scope or wording of the amendment but concede that there is a case for protection, I shall be content to consult with their advisers and bring back a mutually agreed amendment to Third Reading.

§
I should like to read to the House a letter which came to me from the head of programme legal services of Thames Television. It shows a double standard on the part of the Government. The letter reads:
I write to you on the subject of the recent payment to Universal of approximately £100,000 in respect of the use of the Frank N. Stein character in the current electricity privatisation advertisement.The fact is, of course, that this character in its various forms … was created by Mary Shelley more than 150 years ago and is therefore out of copyright. In this business we are all accustomed to bullying claims by American showbiz lawyers. In my capacity here I have just fought off such a claim by an American lawyer for £10,000 in respect of the use of music which was already covered by [other agreements]. In this kind of situation American lawyers are unbelievably aggressive but in a situation of that kind I owe a duty to my employers … I should have thought that a similar duty to the public arose in the case of the electricity advertisements".

§
We there have a situation in which the Government paid what is estimated to be between £50,000 and £100,000 for a character which they used in their electricity advertisments, which is out of copyright. My friend from Thames Television ends his letter as follows, which I believe says it all:
One final thought. It does seem astonishing does it not that Universal can be paid for the use of a character created by Mary Shelley [which is out of copyright] but that Hughie Green does not own 'Opportunity Knocks"'.

My Lords, my name appears as a supporter of this amendment and I should like to make one or two brief comments. The matter has been argued with such eloquence and knowledge by the noble Lord, Lord Willis, that it is unnecessary to repeat any of the arguments illustrating that this is the sort of situation which calls for more adequate legal protection. If the Privy
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Council case in question showed anything, it showed that such adequate protection does not appear to exist under the present state of the law.

I only propose to repeat a suggestion that I made when the matter was discussed at Committee stage. If the Government have set their face against introducing any change in the law in this area, this is an eminently suitable issue to be referred to the Law Commission. I remind noble Lords that at Committee stage the noble Lord, Lord Sanderson, in answer to my suggestion, said that he would consider it.

I observe that in a memorandum just issued by the Department of Trade and Industry, and of which they were good enough to send me a copy, in paragraph 26 there appear these words:
A change in the law cannot be ruled out. But it would need to be preceded by a fuller consideration of the adequacies of the present law and the implication of any change than has been possible so far".
I should have thought that is the sort of matter eminently appropriate to be considered by the Law Commission. I have great sympathy for the case put by the noble Lord, Lord Willis, and would welcome any move by the Government to take more immediate action. At any rate, if such action be not the case, perhaps the Government will say that they are ready to go along with the proposal to put the matter before the Law Commission. If the Government cannot agree to that suggestion and the opinion of the House is to be taken—which is a matter for the noble Lord, Lord Willis—for my part I am prepared to support the amendment.

My Lords, I am happy to have my name on this amendment for the reasons so effectively set out by the noble Lord, Lord Willis. The first point I make is that if there is anything in his suggestion that the Government are saying that there is no concern about this matter, they should take into account the eminence of the noble Lord, Lord Willis, himself in the field we are discussing. There is no doubt that if his speech can be looked upon as evidence, we have an expert witness giving the most effective evidence which should not be disregarded.

I hope that whatever feelings the Government may have had in the past, the experience of Mr. Hughie Green has put them clearly in a position of endeavouring to deal with that gap in the law. Until that case arose I thought that what we are asking for in this amendment was in fact the law. Everything operated in the belief that the people who produced these ideas and invented special games, which have brought so much pleasure to people, had the protection of ownership.

If the amendment or something similar is accepted we would merely be bringing the law to the point that everyone thought existed before that sad case came forward. My noble friend and his colleagues have a duty to do that. It has been done in the past when similar situations have arisen. I remember a Private Member's Bill that I brought before this House dealing with licensing. A judgment had been given in a court in the South which made it illegal for anyone at a dance or a function to collect their own drink
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from the counter; it had to be taken to them by a waiter, with all the added expense and problems that that entailed.

Until that time everyone thought that it was lawful to collect their own drinks and enjoy their evening in the normal way, but the judgment showed that that was not the position. Through a Private Member's Bill that I was allowed to bring forward the government put that right and changed the law to match the position that was thought to exist before the case disclosed a weakness in the law.

Therefore, there is a precedent which I hope my noble friend will take into account. If there is a gap in the law it is Parliament's job to assist the judiciary by making the position clear and as Parliament intended it to be; and I believe that Parliament intended the position to be as we have always thought it was before the Privy Council decision in the Hughie Green case.

There is no purpose in repeating the points which the noble Lord, Lord Willis, made so effectively and with such authority, particularly at this late hour. I believe that any reasonable person would accept the validity of every point that he made and would also follow the advice which the noble Lord, Lord Lloyd of Hampstead, gave by taking the earliest opportunity of seeing that those who have to set out the words that form our law take these matters into account.

I should like to have the attention of my noble friend because I want to talk about him as a person quite apart from the great authority which he has in being a spokesman for the Government on this important issue. My noble friend has a reputation for being consistent. I think his middle name is consistency. It is within the recollection of this House that today, in relation to the first Amendment, No. 209A. moved by the noble Baroness, he was able to win the day against her by arguing that anyone who has a claim to the ownership of anything is entitled to the rights that go with it. The noble Baroness did not agree with that. She said that she did not think that ownership should come into it. It is the satisfaction given to the customer or the consumer which really matters.

My noble friend said that someone who had bought or who, by giving their skill, ingenuity and time, had invented something new, was entitled to compensation if that item was copied or taken by someone else. The argument that my noble friend used most effectively to win the point against the noble Baroness's amendment is four-square and on the same basis as the argument which the noble Lord, Lord Willis, is asking us to accept. I am asking my noble friend to live up to his name of being a consistent Minister in terms of the points that he makes.

On this occasion the noble Baroness is not left out. The point on which she based her amendment earlier in the debate was that the customer or consumer should have all the benefits that can be given. She was emphasising that. We can have her support on this. If the amendment which the noble Lord, Lord Willis, instigated, and which we are now supporting, is accepted, it is the customer or consumer who will
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benefit. There is no doubt that, unless we make it crystal clear that the inventors of these ideas in the field of theatre and broadcasting are to have the kind of protection which they thought they had in the past, and which the Privy Council's decision has shown they have not got, people will stop following their example.

We shall be making a grave mistake if at this time we do anything that weakens the contribution that the people of this country can make to effective broadcasting. The noble Lord quoted the figures of what we earn by exporting the benefit of these ideas and their presentation. It is a considerable amount of money. We have a responsibility to protect it. At the moment this country is at the head in being able to produce ideas which go to make up programmes. The world is taking those programmes. The surface of the opportunities available has only been scratched in developing the markets for the programmes that are produced.

We are on the way towards being the Hollywood of the broadcasting world, just as Hollywood was the centre for the film world. I am asking my noble friend to be consistent. I should like his attention if he does not mind.

My Lords, I am all in favour of conversations but this is an important amendment. I would like to feel that it is being properly considered. I ask my noble friend to recognise that there is a gap. I ask him to accept the evidence given by the noble Lord, Lord Willis, who is a world authority in this field. He said that there was concern about this matter. I ask him to follow the same argument that he used so effectively when he defeated the introduction of Amendment No. 219A earlier today. If in his view and the view of his advisers the words of the amendment do not fit in, perhaps he will indicate that he will produce other words to achieve the same objective. It is with confidence that I ask him to take all those matters into consideration and to tidy up a loophole which has now shown itself.

My Lords, before the noble Lord sits down, I feel I should remind him that when the vote on the listed events took place it was won by the battalions on that side of the House who had not even heard what I and the Minister had to say. I do not think it had anything to do with reason.

My Lords, we are indebted to my noble friend Lord Willis for introducing the amendment and to the two noble Lords who have spoken. I say with great regret that my opening remarks must be ones of complaint. In Committee I asked whether, because the matter was highly technical and because it was very late at night, I could see the relevant Minister. I did not wish then to delay matters by going into great detail. I was given an
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unequivocal assurance by the Government that they would do that. They have failed to meet that commitment.

Originally I was just rather annoyed about it—but only "rather" and I was not going to press the point —but a few minutes ago, as I was sitting innocently on the Front Bench, there was a great deal of to-do in connection with the amendment of my noble friend Lord Clinton-Davis. I learnt that all kinds of people had been welcomed and seen by the noble Earl's honourable friend. But he was too busy to see me despite an unequivocal assurance from the Government. I do not believe in a conspiracy view of politics but those noble Lords whom the noble Earl's honourable friend had time to see all seem to sit on the government side of the House. He had time to see them. However, despite the Government's complete assurance that they would see me, they have had no time to do so.

The matter goes further. When I expostulated with the Minister's private secretary—I have not yet been privileged to meet the Minister—I was told that he is extraordinarily busy. Although the Government had given a pledge that they would see me before the Report stage, they could not do so. On Monday of this week I received a letter from the Minister himself saying that he would certainly see me before Third Reading. The House will be interested to know that I picked up the telephone and spoke to the Minister's private office. I said that although Third Reading was not as good as Report stage I would see him before Third Reading. I was told, "Oh, you have received that letter but I am afraid that that too does not apply. The Minister will be out of the country, in his constituency or carrying out various visits and will not be able to see you before Third Reading".

I have no personal concern in this matter. I am used to the world having its tough times as well as its good times. However, I have two objections in addition to the fact that it has somewhat annoyed me to find that the Minister has had time to see noble Lords from the government side of the House who did not have such an assurance given in public. The first is the discourtesy to your Lordships' House. It is a discourtesy quite independent of anything to do with politics. It is a straight discourtesy. When the Government make such a commitment, that should be it. Secondly, there was an actual reason for going to see the Minister. This is a highly technical matter. It is not of enormous interest to all noble Lords. It would have been useful to go through the detail earlier. In addition, because we were in Committee then but are on Report stage now, I and other noble Lords can speak only once at this point. Therefore the type of toing and froing which would enable us to rebut arguments, to clarify arguments and so on is also denied us.

I am sorry that I have taken up some time in raising this issue. However, I feel that it is a serious matter and one which cannot now be put right. There is no time left for the Government to meet their commitment, and in my view it is a disgraceful state of
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affairs. I do not believe for one moment that this has anything to do with the noble Earl personally; indeed, I would find that impossible to believe. Nevertheless, it is not a satisfactory position.

I have spoken thus far with a heavy heart, but I should say that I had no intention of pursuing that line unless I was obliged to do so. I shall now move on to the substance of my argument. I shall start with something which is still a puzzle to me. I was delighted to hear the noble Lord, Lord Harmar-Nicholls, on the matter. We are discussing property rights. We are not discussing who owns what; we are discussing the rewards available to enterprise, to skill, to innovation and to imagination.

Throughout the proceedings I have been extremely puzzled to note that this is a matter which concerns me, sitting as I do on this side of the House, whereas the Government do not seem to consider it to be important. Therefore, I am delighted that at least someone from those Benches has spoken on the matter, pointing out that property rights used to be an important consideration for the noble Lord's party. The paradox is that I seem to be pressing the point. I would find this amusing if one was not discussing large sums of money. One cannot just brush this matter aside and say that it is academic; we are discussing a fundamental issue here.

How has the Department of Trade and Industry approached the matter? It seems to me that the department has approached it in a totally nit-picking and unconstructive way. I have a document from the department, as, I believe, does my noble friend Lord Willis—although I am not sure whether other noble Lords have been privileged to see it. It is a document which, so to speak, rebuts many of the arguments which noble Lords have tried to put forward.

The arguments put forward in the document are in most cases, far-fetched, to say the least. They are often so extreme that the department, in being willing to argue why it will not deal with the matter, almost calls into question the whole foundation of copyright law. I shall give noble Lords one or two examples of this in a moment. I find that situation extremely disturbing and I believe that I find it so in exactly the same way as the noble Lord, Lord Harmar-Nicholls: one had expected exactly the reverse from the department. I have no amour proper when it comes to the amendment which we are discussing. I do not care about the amendment tabled by my noble friend Lord Willis per se—nor does he. What we are concerned about is the substance.

I should have been delighted if the Department of Trade and Industry had come, as the noble Earl, Lord Ferrers, has on other matters, and said, "We do not like your amendment". Indeed, a few words were said to the noble Earl, Lord Stockton, accusing him of not being able to draft properly, and so on. I have no views on that aspect. I should have loved to support a government amendment which dealt with the issue. My concern is that we are trying to deal with it and, I may add, at great personal cost, as it is a difficult
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matter and consequently time-consuming. All one receives is this very small-minded approach from the Government.

The Government's approach has also been rather illogical. I say that because in the documents which I have received from the department it seems to put forward two arguments simultaneously. For example, the department sometimes argues that protection for formats is not necessary, that this was, as was said, a one-off case and no other problems arise. However, in the very same document the department switches its arguments in other paragraphs and says that it cannot do anything about the matter of protecting formats because of all sorts of problems of definition. In other words, on the one hand the department says that there is no problem, while on the other hand it says, "Yes, there is a problem but it is an insoluble one". It seems that the department cannot make up its mind. That is an example of the attitude which it has taken when approaching this matter.

I am in difficulty here because I do not believe that most noble Lords are terribly interested in the subject. Certainly the way they are chatting to each other does not suggest to me that they are interested in this issue. However, there are many detailed points which ought to be made. One reason why they must be made is precisly the point I made to your Lordships—namely, that all this could have been dealt with if I had been afforded the courtesy of being able to see the relevant people. I must, therefore, outline a few of those points of detail, though I do not like doing so at this time of night, especially to an audience which is not interested.

I shall give your Lordships an example of the kind of documentation which I have received from the Department of Trade and Industry. The department seems to count as a point against the view of my noble friend Lord Willis the fact that in the Privy Council judgment the case was decided on the facts. When one reads a sentence like that one thinks what a profound sentence it is. So I consulted my legal advisers and they said, "Don't you know. All cases are decided on their facts." That is no contribution to the subject. That is an example of someone trying to pretend that they have rebutted an argument when they are making a trivial point. As all cases are decided on their facts, what matters is what one infers from the decision. The key point that one infers from the Privy Council decision - that is why it is important and as I see it the DTI has not faced up to the matter - is that uncertainty and doubt have been created where we all believed that there was certainty. Others have said the same, and the noble Lord, Lord Harmar-Nicholls, put it eloquently! What we believed to be the law turns out not to be the law.

As I argued in Committee, as we all believed it to be the law and believed it to be satisfactory, why do we not make it the law? That is the beginning and the end of the matter. When the DTI tried to refute the view I put Forward originally - what we believed to be the case should be the case - it reverted to the Hughie
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Green case and regarded it as a one-off case. It ignores the fact that everyone is full of doubt and does not know what is what.

The fact that the DTI has introduced doubt is important. It also used another kind of argument, and one which is worrying when we are discussing matters of this kind. They look at matters ex post facto when they should be looked at ex ante facto. That is a problem in the whole area of copyright. Someone has an imaginative work and makes a leap forward, but when it is looked at many years later it looks commonplace. Let us take "Opportunity Knocks" and Mr. Green. The DTI asks why he should have any copyright, because it is an obvious way of doing things. It was not obvious when he did it. It was not obvious that it would be successful and a money spinner when he did it, only ex post facto. That is typical of the DTI argument.

I have two more points to put forward. One is that the Minister argued that to introduce what is considered to be a new right - - we all believed that it was not a new right, and I do not believe that it is —would lead to harassment. I argued that if one was to say that in this case, one would be saying it for the whole of copyright. One would he arguing that there should not be any copyright. The department then sort of wriggles away. I cannot describe the preposterous way in which the department has approached the problem. If any attempt is made to beat it, it just wriggles away into something else. It says, "Well, yes, of course that is right, but here there would be much more legal abuse. There would be much more harassment if we had that right." Given that we believed we had the right before, and that until the Hughie Green case had no examples of harassment to worry about, again I am completely perplexed.

The final argument to which I should like to avert is the international one. I argued that there was nothing substantially novel in all of this. I have the statement:
The Government has stated that to its knowledge there is no right of the kind proposed anywhere in the world".
That again seems to be a profound statement until one looks at the facts. The facts are of course that there are such rights throughout the rest of the world, but they are not defined in the way that we define them, because the rest of the world's legislation is different from ours. For example, many courts in other countries have dealt with what they call the law of developed ideas. Others have much more powerful unfair competition laws under which this type of problem can be dealt with. It is not a fact—I find it disturbing that the DTI would try to mislead in that way—that the idea is uniquely British and that other countries do not legislate for the right in some way.

I appreciate that I have tried the patience of your Lordships' House on matters in which not all your Lordships are interested. I am interested in them, as are at least three other noble Lords. Even if that were not the case, I repeat my point that there are two matters here about which I am most concerned: the first is the substantive issue that there is a problem which is solvable and should be solved; the second is
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—and I echo other noble Lords, and notably the noble Lord, Lord Harmar-Nicholls—that this is not a problem which either my noble friends or I should have been put to solving.

This is a problem in which the Government should have taken the lead and I do not believe that it is too late for them so to do. I believe that they have a duty —another word used by the noble Lord, Lord Harmar-Nicholls—to do something about it. Despite the lateness of the hour, the lateness of the day and the fact that this Session of Parliament is now coming to an end, the time has come for the noble Earl to tell us that he will deal with this matter and, on this issue at least, we can all go home happily.

My Lords, I am sorry that the noble Lord, Lord Peston, felt so needled by the Government as regards this amendment. He was clearly distressed about it and distressed that, as he said, the Government had not met their commitment. My noble friend Lord Sanderson gave an undertaking that he would be prepared to consider this matter with the noble Lord. The noble Lord, Lord Peston, said that we on this side of the House had time to meet noble friends on these Benches and not noble Lords opposite. I believe that he was being rather ungenerous over that. I do not need to tell him the basis of lobbying. If a Minister gives an undertaking that he will see a noble Lord—and that undertaking can be given at a number of stages throughout the Bill —the onus is on the person to whom the undertaking is given to telephone and say that an undertaking has been given and that he wishes to see the noble Lord concerned. I am not aware that the noble Lord, Lord Peston, asked to see me or my noble friend.

My Lords, I am sure that the noble Earl does not wish to impugn my honour on this matter or suggest that I am not telling the truth. I telephoned his office and was told that his office was not dealing with this issue because the noble Earl is not an expert in the matter. Therefore, I have certainly telephoned his office and I am most upset if that information was not communicated to him. I was told that the relevant office to ring, of which I was well aware, was the Department of Trade and Industry. I hope that he will take my word that I rang that office on more than one occasion. Therefore, if I am in a resentful mood, I am resentful at his suggestion that I did not do exactly what I said I did.

Earl Ferrers

My Lords, the last thing I wish to do is to impugn the noble Lord's honour. I was merely making the point that I understood the noble Lord to be saying that we had not undertaken what we had agreed to do. However, the noble Lord, Lord Willis, complained that this is a late hour at which to take this amendment. It is true that it is late. He then said that that is the Government's fault. I do not wish to argue about this but I should point out that we had hoped to reach Clause 110 by the end of last Thursday's debate and it was suggested by the Benches opposite through the usual channels that we should go only to the end of Clause 81. We accepted that and therefore
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we did not reach the point which we hoped to achieve last Thursday. That meant that there was more work to be completed today. I do not wish to make too much of that.

My noble friend Lord Harmar-Nicholls is always very plausible. He said that I am always consistent. I was very flattered by that because I feel that intellectually I go backwards and forwards like a metronome as the arguments are put one way and the other. Therefore, to say that I am consistent is a degree of flattery to which I am not accustomed. He castigated me for not paying attention to him. It was merely that when he said that this is the Hollywood of the broadcasting world, I turned to my noble friend and said, "Well, if that is the case, then I am Joan Collins!"

I assure my noble friend that Her Majesty's Government are concerned about what has happened. The inference was that the Government are not concerned about the case to which the noble Lord, Lord Willis, has correctly drawn attention. This is a matter of considerable concern. As usual in these kinds of cases, there is more than one side to the problem.

It is undoubtedly the case that a considerable amount of skill and effort, not to mention financial investment, goes into the production of television shows such as game shows, quizzes and the like. Understandably, those who have invested time, money and effort in the creation of such shows want to be assured that their investment is secure and that others cannot merely take and use what they have produced.

It has always been assumed in the industry that the law does give proper protection. However, the recent judgment of the Privy Council in the Hughie Green case has caused this assumption to be questioned and has generated concern among the devisers of television shows and some—but apparently not all—broadcasters. That has come out this evening in the speeches of noble Lords.

The refusal of the Privy Council to grant copyright protection in New Zealand to "Opportunity Knocks" means, so it is said, that the format of a television programme, which is a valuable piece of intellectual property, is unprotected by the law. These new clauses seek to remedy this alleged deficiency in the law by creating a new species of intellectual property right akin to, but distinct from, copyright.

We discussed this matter in Committee and, as I have explained, my noble friend Lord Sanderson outlined the difficulties that the Government see in providing for format rights of the kind proposed by the noble Lord, Lord Willis. In response to a request by the noble Lord, Lord Peston, for a meeting, my noble friend Lord Sanderson made it clear that the Government were willing to discuss these matters further before Report. The noble Lord, Lord Willis, indicated that the proponents of format rights would take up that offer. I can only tell the noble Lord, Lord
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Peston, my version of the story, so to speak. I hope he will treat that with equal courtesy to that I afforded to him.

My honourable friend the Minister for Industry and Enterprise at the Department of Trade and Industry is responsible for these questions. In the expectation of an approach by advocates of the new right, his department re-examined the issue in some depth. A discussion paper was prepared in anticipation of further debate with the interests. We heard nothing and were beginning to think that the proponents of a format right were having second thoughts in the face of the formidable difficulties which we foresaw. At the end of September, the noble Lord, Lord Willis, wrote to my honourable friend Douglas Hogg, who replied enclosing a copy of the paper to which I have referred.

I do not propose to go over the ground we covered in Committee, or to go through all the arguments set out in the DTI paper. The most fundamental objection to these new clauses is that it is impossible to establish with any degree of certainty what would be protected in any given situation. There are also uncertainties as regards what would infringe such a right. This is not a sound basis on which to legislate. I do not rule out a change in the law at some point, but it needs to be preceded by a fuller consideration of the adequacies of the existing law and the implications of any change than has been possible so far. Certainly the issue needs to be considered by a much wider range of copyright interests than have been involved to date and has been possible to date. In this connection, I should perhaps mention that we are looking into the helpful suggestion of the noble Lord, Lord Lloyd of Hampstead, regarding a Law Commission study, but this does not seem a likely solution. There is little evidence that copying of formats in the United Kingdom is a significant problem or is likely to become one in the near future.

I understand that the noble Lord, Lord Willis, and other noble Lords will be disappointed. I am not suggesting by any means that there is no problem here; I accept that there is. I should not be seen either to be locking the door for all time. The noble Lord, Lord Peston, asked why, if the law was not what we thought it was, we did not put it back to what we thought it was. It is easy to be persuaded by one's own convictions, but that tends to be only one side of the problem.

My Lords, we cannot have all this to-ing and fro-ing, but I do not understand the noble Earl's argument. He has put his finger, as I thought I did, on the absolutely central view that we know what the law was supposed to mean. There was never any argument about it. Before the case no one was writing articles saying that there was a problem; it has only arisen after the case.

My difficulty, and the reason I am so annoyed about all this, is that I would like to hear a straightforward argument as to why the position cannot be as it was. There was never any doubt about that. There may be reasons, but we cannot deal with them in this way at this time. That is why I have been
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so concerned at our inability to get to grips with the matter. I am not affected personally: I do not write programmes - I do not like game shows. However, it is an important matter.

Earl Ferrers

My Lords, the noble Lord asked why we cannot go back to what we thought was the position. I am saying that if one changes the law it has implications that one does not necessarily want; it affects other people. That is why I suggested that the matter is not quite that simple.

If the interests involved—and there are many who have not been involved in the debate—can establish that there is a problem that can be resolved only by legislation and that a proper legal framework can be established to protect formats, we can certainly return to the matter. However, I believe that it would be wrong at this time to introduce into our law a completely new intellectual property right, one which is untried anywhere in the world, which cannot be defined with any degree of legal certainty and which may have adverse effects on the cross-fertilisation of ideas.

That is the position as I see it. I know that the noble Lord, Lord Peston, is disturbed about the matter. If he wishes to come to see me or to talk to me about the matter, or if I can help him in any way, of course I should be delighted to do so. If he cares to get in touch with me I shall do the best I can to help him. However, I cannot assure him that we will be able to produce an alteration of the type he wants at Third Reading of what is a complicated issue. If the noble Lord is concerned I shall do my best to try to allay his concerns and at least try to understand them.

My Lords, I cannot say that I am disappointed by that reply. I am rather appalled by it. It seems to me that the noble Earl, courteous as ever, has not added one whit to the arguments that he made at Committee stage. The arguments that he has advanced against the amendment have been shot through with holes by the noble Lord, Lord Harmar-Nicholls, and my noble friend Lord Peston, and I hope that I have fired one or two rounds.

I know that it is very late but I ask my noble friends and others to stiffen their sinews and summon up their blood and support the amendment.

§
297A.—(1) A person who makes, imports, sells or lets for hire any unauthorised decoder shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

§
(2) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for knowing, that the decoder was an unauthorised decoder.

"decoder" means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded;

"transmission" means any programme included in a broadcasting or cable programme service which is provided from a place in the United Kingdom; and

"unauthorised", in relation to a decoder, means a decoder which will enable encrypted transmissions to be viewed in decoded form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for viewing those transmissions, or viewing any service of which they form part."

§
(2) In section 299 of the Act of 1988 (fraudulent reception of programmes broadcast from countries or territories outside the United Kingdom)—

(a) subsection (2) shall cease to have effect; and

(b) in subsection (5), after "297" there shall be inserted "297A".")

§
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 339. I beg to move.

§
The noble Earl said: My Lords, with this amendment, I speak also to Amendment No. 373. The new clause imposes a general rule of business confidentiality for information obtained under the Bill. Specifically, it prohibits, subject to certain exceptions, disclosure of information obtained under or as a result of the Bill without the consent of the business or company to which it relates, and creates a criminal offence for unauthorised disclosure with a maximum penalty of up to two years' imprisonment on conviction. I beg to move.

§
—(1) The Restrictive Trade Practices Act 1976 shall not apply, and shall be deemed never to have applied, to any relevant networking arrangements which are specified, or are of a description specified, in an order made by the Secretary
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of Stale (whether before or after the making of those arrangements), and which satisfy such conditions as may be so specified.

(a) any arrangements entered into as mentioned in section 38(4) or (7) (b) above, or

(b) any agreement not falling within paragraph (a) but made for the purpose mentioned in section 38(1) above.

§
(3) Before making an order under subsection (1) the Secretary of State shall consult the Independent Television Commission and the Director General of Fair Trading; and such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

§Modification of networking arrangements in consequence of reports under competition legislation

§
(".—(1) The Secretary of State may, in any of the circumstances in which this subsection has effect, by order provide for any networking arrangements specified in the order to have effect with such modifications as appear to him to be appropriate.

§
(2) Subsection (1) shall have effect in the following circumstances, namely—

(a) where the circumstances are as mentioned in section 56(1) of the Fair Trading Act 1973 (order on report on monopoly reference) and the monopoly situation exists in connection with the provision of programmes for broadcasting in regional Channel 3 services;

(b) where the circumstances are as mentioned in section 73(1) of that Act (order on report on merger reference) and one or more of the enterprises which ceased to be distinct enterprises was engaged in the provision of such programmes; and

(c) where the circumstances are as mentioned in section 10(1) of the Competition Act 1980 (order on report on competition reference) and the anti-competitive practice was pursued in connection with the provision of such programmes.

§
(3) An order under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

§
(" .—(1) Subject to subsections (2) to (4), no information with respect to any particular business which has been obtained under or by virtue of this Act shall, so long as that business continues to be carried on, be disclosed without the consent of the person for the time being carrying on that business.

§
(2) Subsection (1) does not apply to any disclosure of information which is madeߞ

(a) for the purpose of facilitating the performance of—

(i) any functions of the Independent Television Commission, the Welsh Authority or the Radio Authority under this Act or the 1988 Regulations, or

(ii) any functions of the Director General of Fair Trading, the Secretary of State or the Monopolies and Mergers Commission under the Fair Trading Act 1973 (excluding Parts II,

(a) as limiting the matters which may be included in, or be made public as part of, a report under section 184 above or under Schedule (References with respect to networking arrangements) to this Act, or

(b) as applying to any information which has been made public as part of such a report.

§
(4) Subsection (1) does not apply to any information obtained as mentioned in section 192(4) above.

shall not apply to any disclosure of information which is made for the purpose of facilitating the performance of any functions of the Independent Television Commission, the Welsh Authority or the Radio Authority under this Act or the 1988 Regulations.

§
(6) Any person who discloses any information in contravention of subsection (1) shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

§
(7) In this section "the 1988 Regulations" means the Control of Misleading Advertisements Regulations 1988.").

§
The noble Earl said: My Lords, these amendments have been spoken to with Amendments Nos. 113 and 368. I beg to move.

§Earl Ferrers moved Amendment No. 374:
Page 156, line 34, leave out ("means the twelve months ending with 31st March;") and insert ("shall be construed in accordance with subsection (1A);").

§
The noble Earl said: My Lords, I speak also to Amendment No. 376. These are technical amendments to allow the bodies established by the Bill to determine their own financial year for their accounts. I beg to move.

§Earl Ferrers moved Amendment No. 375:
Page 156, line 36, at end insert:(" "pension scheme" means a scheme for the payment of pensions, allowances or gratuities;").

§
The noble Earl said: My Lords, I shall speak also to Amendment No. 377. They are essentially drafting amendments. They clarify the definition of pensions and similar payments. The intention is to make clear that the ITC and other statutory bodies have the
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power to pay pensions and other benefits in other circumstances where it would be appropriate for them so to do. I beg to move.

§Earl Ferrers moved Amendments Nos. 376 and 377:
Page 156, line 44, at end insert:("(IA) In any provision of—

(a) section 147 or 159, or

(b) Schedule 1, 2, 3, 4, 6, 11, 12 or 17,

"financial year" means a financial year of the body with which that provision is concerned; and in any other provision of this Act "financial year" means the twelve months ending with 31st March.").Page 156, line 44, at end insert:("(1B) In this Act—

(a) references to pensions, allowances or gratuities include references to like benefits to be given on death or retirement; and

(b) any reference to the payment of pensions, allowances or gratuities to or in respect of any persons includes a reference to the making of payments towards provision for the payment of pensions, allowances or gratuities to or in respect of those persons.").

§
The noble Earl said: My Lords, both amendments were spoken to earlier with Amendments Nos. 374 and 375. I beg to move.

§Earl Ferrers moved Amendments Nos. 378 to 388:
Page 252, line 35, at end insert:("(2) In section 71 (reports of domestic proceedings), for subsection (1) substitute—(1) In the case of domestic proceedings in a magistrates' court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies—

(a) to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or

(b) to include, or cause or procure to be included, in a programme included in a programme service (within the meaning of the Broadcasting Act 1990) for reception in Great Britain,

any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below.(1A) The particulars referred to in subsection (1) above are—

(a) the names, addresses and occupations of the parties and witnesses;

(b) the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(c) submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions;

(d) the decision of the court, and any observations made by the court in giving it.

(1B) Subsection (1) above applies—

(a) in relation to paragraph (a) of that subsection, to the proprietor, editor or publisher of the newspaper or periodical, and

(b) in relation to paragraph (b) of that subsection, to any body corporate which provides the

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service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.";

and in subsection (2), for "subsection (1)" substitute "subsection (1A)".").Page 253, line 19, at end insert ("for reception in Northern Ireland").Page 253, line 19, at end insert:("(2) In Article 90 (reports of domestic proceedings), for paragraph (1) substitute—(1) A person to whom this paragraph applies shall not—

(a) print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or

(b) include, or cause or procure to be included, in a programme included in a programme service (within the meaning of the Broadcasting Act 1990) for reception in Northern Ireland,

any particulars of any domestic proceedings other than such particulars as are mentioned in paragraph (1A) below.(1A) The particulars referred to in paragraph (1) above are—

(a) the names, addresses and occupations of the parties and witnesses;

(b) the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(c) submissions on any point of law arising in the course of the proceedings and decisions of the court on the submissions; and

(d) the decisions of the court, and any observations made by the court in giving its decision.

(1B) Paragraph (1) above applies—

(a) in relation to sub-paragraph (a) of that paragraph, to the proprietor, editor or publisher of the newspaper or periodical, and

(b) in relation to sub-paragraph (b) of that paragraph, to any body corporate which provides the service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.".").

Page 257, line 18, at end insert:("(aa) section 11(1), 94(1), 144(4), (5) or (7), 154(3) or 166(1) of the Broadcasting Act 1990;").Page 257, line 19, leave out ("in accordance with any provision of the Broadcasting Act 1990") and insert ("by virtue of section 11(2) or 94(2) of that Act").Page 257, line 33, leave out ("which is provided to them in accordance with") and insert ("requested or required to be provided to them, and so provided, under").Page 257, line 34, leave out ("(as the case may be)") and insert ("(7) or"). Page 257, line 39, at end insert:

Page 257, line 40, leave out ("in accordance with any provision of the Broadcasting Act 1990") and insert ("by virtue of section 11(2) or 94(2) of that Act").Page 258, line 4, leave out ("which is provided to them in accordance with") and insert ("requested or required to be provided to them, and so provided, under").Page 258, line 5, leave out ("(as the case may be)") and insert ("(7) or").